合约的履行弃权与禁反言PERFORMANCEWAIVERANDESTOPPEL.PPTVIP

共识性禁反言 (Estoppel by convention) The principles applicable to the assertion of an estoppel by convention…are as follows: (i) It is not enough that the common assumption upon which the estoppel is based is merely understood by the parties in the same way. It must be expressly shared between them. (ii) The expression of the common assumption by the party alleged to be estopped must be such that he may properly be said to have assumed some element of responsibility for it, in the same of conveying to the other party an understanding that he expected the other party to rely upon it. (iii) The person alleging the estoppel must in fact have relied upon the common assumption to a sufficient extent, rather than merely upon his own independent view of the matter. (iv) That reliance must have occurred in connection with some subsequent mutual dealing between the parties. (v) Some detriment must thereby have been suffered by the person alleging the estoppel, or benefit thereby have been conferred upon the person alleged to be estopped, sufficient to make it unjust or unconscionable for the latter to assert the true legal (or factual) position. 禁反言 (Estoppel) 共识性禁反言 (Estoppel by convention) 明示沟通过的共识 (Expressly shared common assumption) 对双方达成共识或假设有一定的责任 (Assumed some element of responsibility) 依赖 (Reliance) 体现在双方随后的交往中 (In connection with subsequent mutual dealing) 损害或益处足够让偏离双方对于法律或事实的共识不公平或不合情理 (Detriment or benefit sufficient to make it unjust or unconscionable to assert the true legal or factual position) 禁反言 (Estoppel) 产权性禁反言 (Proprietary estoppel) If A, under an expectation created or encouraged by B that A shall have a certain interest in land, thereafter, on the faith of such expectation and with the knowledge of B and without objection from him, acts to his detriment in connection with such land, a Court of Equity will compel B to give effect to such expectation. 陈述 (Representation) 依赖 (Reliance) 损害 (Detriment) 禁反言 (Estoppel) 合约性禁反言 (Contractual estoppel)