180 THE ADVOCATE
VOL. 79 PART 2 MARCH 2021
conduct creating a mutual assumption. Nevertheless, estoppel can arise
out of silence (impliedly);
(2) A party must have conducted itself, i.e. acted, in reliance on such
shared assumption, its actions resulting in a change of its legal position;
(3) It must also be unjust or unfair to allow one of the parties to resile or
depart from the common assumption. The party seeking to establish
estoppel therefore has to prove that detriment will be suffered if the other
party is allowed to resile from the assumption since there has been a
change from the presumed position.
The Effect of Estoppel by Convention
The effect of an estoppel by convention is to prevent the estopped party
from relying on the fact that the convention on which the parties agreed to
proceed is not true. If the estoppel involves a particular property, the effect
is the same as a proprietary estoppel—namely, to confer ownership of the
property on the party raising the estoppel.6
Where Is the Convention Found? The Importance of Recitals
A convention may be found anywhere: in the parties’ words, conduct or
even silence (see the first principle in Ryan v. Moore).
One common place to find a convention is in the recitals of a document
that establish its background. Such recitals often turn into shared factual or
legal conventions that form the basis of the estoppel. In Carpenter v. Buller,
Parke B. said:
If a distinct statement of a particular fact is made in the recital of a bond,
or other instrument under seal, and a contract is made with reference to
that recital, it is unquestionably true, that, as between the parties to that
instrument, and in an action upon it, it is not competent for the party
bound to deny the recital, notwithstanding what Lord Coke says on the
matter of recital in Coke Littleton, 352; and a recital in instruments not
under seal may be such as to be conclusive to the same extent.7
This statement of the law has been cited with approval in various Commonwealth
decisions.8 In Brudenell-Bruce, Earl of Cardigan v. Moore, Justice
Newey put it succinctly: “if a recital contains a statement which a party to
the deed is to be taken to have agreed to admit as true, the statement is binding
on him”.9
Compared to Other Estoppels
Estoppel by convention is wider than estoppel by deed and by contract. In
Sofer v. SwissIndependent Trustees SA, HHJ Paul Matthews explained the differences
as follows:
129 … Estoppel by convention resembles estoppel by representation in
requiring that one party rely in some way on the convention, so that it be
considered unfair for the other party to resile from it. But it differs from