practice and protect people from certain harms. Unconscionability turns out to be the hub of the doctrine, in the sense that the other elements should function to eliminate it.

One of the main reasons why we want to be as clear as possible on the nature of the unconscionability that underlies PE is the potential effect which the remedy for it may have on third parties. PE is once more in a muddle: authorities and scholars disagree about the position of third parties in a way that leaves this aspect of the doctrine in an unacceptably volatile state. Here, again, a solid view about the justifying principle behind PE can, I believe, help us to resolve the difficulties. Thus, if PE is designed to enforce LPA obligations the remedy it offers should, wherever possible, remain within the relationship of O and R and not spill over to other players.91 In other words, the remedy for PE should in principle be of a personal nature, like monetary compensation or licence, rather than a proprietary right.

This is because transfer of property rights was only expected by the parties to take place at the final stage when a full promise is being delivered and fulfilled. The LPA obligation, in contrast, looks backwards, and aims to ensure that R occupies the same position he did before the representation was made. At this stage, he had, of course, no property right of O’s. A proprietary right should therefore only be awarded where it is impossible to devise a personal remedy that adequately covers R’s reliance loss.92 As Bright and McFarlane show, this property-thin approach, even if it is not explicit in the case law, reflects the results in most of the cases.93 Moreover, in many of the decisions in which a property right has been transferred it was actually possible to take a more imaginative approach and devise a personal remedy that would have answered R’s predicament without affecting third parties.94 This interpretation of proper remedy for PE turns out to be no more, and no less, radical than is proper for reforms in property law.

5. Conclusion

‘Equitable estoppel’ Lord Walker said once, ‘is a flexible doctrine which the court can use, in appropriate circumstances, to prevent injustice caused by the vagaries and inconstancy of human nature’.95 In this chapter I argued that the inconstancy which PE sets to amend is not that of retreating from a representation one made, but rather that of denying one’s responsibility for the way in which the retreat affected other people. The core moral obligation which is enforced by PE does not require O to stick to her representation. On the contrary—the obligation’s

91See also Spence 1999, 34.

92A classical example would be the (somewhat unusual) Crabb v Arun District Council 1975 where R’s reliance consisted in leaving his property landlocked, so that only by granting an easement the detriment could be removed.

93Bright and McFarlane 2005a, 466–76.

94The authors criticize these cases as ‘proprietary overkill’ (Bright and McFarlane 2005a, 473–5).

95Cobbe v Yeoman’s Row Management Ltd 2008, 46.

uniqueness and value lie exactly in the way in which it allows the representor to retract from her representation, subject only to a responsibility she must take for R’s reasonable reliance upon it.

O, we saw, may assume this LPA obligation intentionally in order to encourage R to make investments to promote a joint project even before she can fully commit to it. She may also be reasonably understood by R to take this obligation on. On either case, the state is justified in enforcing the LPA obligation as an exercise of its duty to foster autonomy-enhancing practices. For the formation of such LPA-based relationships enable parties to make optimal investment decisions at the precontractual period, and a frequent refusal to abide by the LPA duties which the relationships imply will collapse the practice of making such investments at a heavy cost to social good. We saw how the circumstances typical of negotiations towards a transfer of property rights exacerbate R’s difficulties on the way to an optimal investment decision: the uniqueness and high value of the subject matter of these transactions raise the stakes for both seller and buyer, and as a result the seller is likely to require a longer negotiation period, the necessary investments by the buyer are likely to be substantial, and the risks of the ‘holdup’ trap will soar in tandem. By reassuring R that the moral obligations that arise out of O’s representations will be fulfilled, PE facilitates efficient pre-contractual reliance in the many cases where the parties cannot be expected to agree on how to meet the reliance loss if the deal is aborted.

In that, the doctrine of PE goes well beyond ordinary tort doctrines that seek to protect representees from faulty representors. For the harm that PE is set to prevent, namely, the collapse of the efficient pre-contractual reliance practice, is detrimental to everyone—representees, as well as representors. It is in the interest of O, in other words, to protect the interests of R. As a result, we should not be surprised to find that the balance between the parties’ interests in a PE claim is different from that of ordinary tort claims—since it is in O’s interest to give R the maximum encouragement to pitch his investment at the optimal level, it makes sense to formulate a rule that makes it relatively easy for him to recover his losses if O retreats. And thus, when the courts enforce on O her LPA obligation, they rightfully go to a great length to ensure that R is fully compensated, so much so that O is many times ordered to make her representation good. This result, I argued, does not reflect the view that O’s representation embodied a promise to R that she is now ordered to fulfil. Rather, it reveals the complex justification for enforcing the LPA obligation which O’s representation gave rise to—not only as a protection from misrepresentation, but also as a means to support and boost high-surplus transactions in property right.