A comparative study of the doctrine of estoppel : a civilian contractarian approach in China

Estoppel is a legal doctrine which prevents a promisor from breaking a promise and exercising her legal rights where the promise has been relied upon to the detriment of the promisee, and it would be unconscionable for the promisor to revoke or rescind the promise. What is the rationale for the doctrine of estoppel? What approaches are taken in different jurisdictions? This paper examines these questions and analyses the different answers given by common law and civilian lawyers. China’s approach to the doctrine of estoppel is vague and inconsistent. It has shifted from discouragement of unconscionable revocation of promises to permitting cancellation of promises which have already been relied upon. This paper analyses the wrongly applied dominion-based approach to disputes of estoppel in China and recommends a restoration of the old approach to accommodate the need to prevent the unconscionable exercise of a legal right which is made subject to an accord or detrimental reliance. Some literature has been written on the topic either within the common law legal family or within the civil law legal family. There is no cross legal family analysis of doctrinal differences. This paper will reveal and analyse the doctrinal differences and the approaches taken by different jurisdictions.