Proprietary Estoppel Essay

â€Å"In Thorner –v- Major, the House of Lords confirmed that a claimant seeking to establish a proprietary estoppel must prove three things: (1) that the defendant’s assurances or conduct in relation to identified property were sufficiently clear and unambiguous in all the circumstances, (2) to lead the claimant reasonably to rely on those assurances or conduct; (3) by acting significantly to his detriment, so that it would be unconscionable for the defendant to deny him any remedy.† (Per Hayton and Mitchell: ‘Commentary and cases on the law of Trust and Equitable Remedies’, 13th edition, Sweet and Maxwell, page 78) Critically analyse and evaluate this statement in light of recent developments in the law of proprietary estoppel. Despite the lack of a definitive formulation, it is widely accepted that the elements of assurance, reliance and detriment must be present in order to found a claim of proprietary estoppel . The doctrine has however been widely criticised for being too flexible and uncertain. The main cause of this uncertainty is the lack of clarity surrounding the role of unconscionability. It has been stated that unconscionability is â€Å"at the heart of the doctrine,† and yet there is â€Å"little guidance as to what it means, little explanation of why it is at the centre and thus virtually no consideration of the role it might play in providing both a justification for, and a limitation on, successful estoppels† . Commentators have largely agreed that there is a â€Å"need to develop clear parameters for the operation of the doctrine, else it really will be a discretionary panacea for all ills whose application is unpredictable and uncertain. Prior to Thorner v Major [2009] and Cobbe v Yeoman’s Row Management Ltd [2008] it had been 142 years since a case of proprietary estoppel had reached the House of Lords. Therefore it was hoped that these cases would give the judiciary a long awaited opportunity to clarify the doctrine. In Cobbe Lord Walker stated that â€Å"Equitable estoppel†¦is not a sort of joker or wild card to be used whenever the court disapproves of the conduct of a litigant who seems to have the law on his side. Flexible though it is, the doctrine must be formulated and applied in a disciplined and principled way.† The House of Lords appeared determined to address the criticisms and it was hoped that they were about to define and clarify the doctrine, especially the role of unconscionability. Lord Scott, who gave the leading judgement, stated that unconscionability alone is never enough to found a claim of proprietary estoppel. â€Å"To treat a ‘proprietary estoppel equity’ as requiring neither a proprietary claim by the claimant nor an estoppel against the defendant but simply unconscionable behaviour is, in my respectful opinion, a recipe for confusion†. Lord Walker addressed the uncertainty over whether unconscionability is a separate element, by stating that â€Å"unconscionability†¦ does in my opinion play a very important part in the doctrine of equitable estoppel, in unifying and confirming, as it were, the other elements. If the other elements appear to be present but the result does not shock the conscience of the court, the analysis needs to be looked at again† . These emphatic statements confirmed that unconscionability alone is insufficient to give rise to a claim of proprietary estoppel and that the traditional elements must always be present. It is suggested however that these pronouncements did very little in practice to define or clarify the concept. The modern approach to proprietary estoppel which began with Taylor Fashions Ltd v Liverpool Victoria Trustees Co Ltd [1982] adopted a â€Å"broad test of whether in the circumstances the conduct complained of is unconscionable without the necessity of forcing those incumbrances into a Procrustean bed constructed from some unalterable criteria.† Despite this statement the judgement in Taylor Fashions did not rely on unconscionability alone. The court required the three traditional elements to be present, albeit adopting a new claimant centred approach to establishing them. Therefore the statements in Cobbe regarding unconscionability are uncontroversial and do not significantly alter its position within the doctrine. The judgement in Cobbe was regarded as a severe curtailment of the doctrine and was believed to have greatly narrowed the scope of its operation. It was even thought that it had led to the ‘the death of proprietary estoppel’ This was not due to the outcome of the case, but due to the controversial reasoning behind this decision. Lord Scott attempted to rein in the doctrine by focusing on the traditional elements of proprietary estoppel and restricting the doctrine via their operation. He focused on the assurance or representation element, which requires that the claimant must have been led to believe that he has or he will acquire an interest in the defendant’s land. He stated that the required assurance was of a ‘certain interest’ and this meant that the claimant must specify the interest in the property he believed he had or would have. Cobbe dealt with a case of proprietary estoppel in a commercial context. Therefore Mr Cobbe’s â€Å"was not an expectation that he would, if the planning application succeeded, become entitled to â€Å"a certain interest in land† but an expectation â€Å"of further negotiations leading, as he hoped and expected, to a formal contract† . Lord Scott stated that this was not â€Å"the sort of expectation of ‘a certain interest in land’ that Oliver J in the Taylors Fashions case or Lord Kingsdown in Ramsden v Dyson had in mind† and so the claim failed. This requirement for a specific assurance narrowed the scope of operation of the doctrine and was inconsistent with previous Court of Appeal decisions such as Gillett v Holt and Jennings v Rice where a claimant had an expectation of a future interest in land. Lord Walker further restricted the doctrine by stating that the claimant must believe â€Å"that the assurance on which he or she relied was binding and irrevocable†. Therefore the claimant must not only believe that the landowner has made a promise, but also believe that the promise is legally binding. He made it clear that context was important. â€Å"In the domestic or family context, the typical claimant is not a business person and is not receiving legal advice†¦The focus is not on intangible legal rights but on the tangible property which he or she expects to get.† As the parties involved in Cobbe were â€Å"persons experienced in the property world, both parties knew that there was no legally binding contract, and that either was therefore free to discontinue the negotiations without legal liability†¦the fact is that he ran a commercial risk, with his eyes open† This restriction is also inconsistent with Gillett v Holt which â€Å"explicitly addressed, and rejected, the notion that the revocability of wills prevents a promise to make a will forming the basis of a proprietary estoppel claim.† Surprisingly it was Lord Walker who gave the leading judgement in that case and acknowledged here that â€Å"It may possibly be that some of the domestic cases might have been decided differently if the nature of the claimant’s belief had been an issue vigorously investigated in cross-examination.† Thus casting doubt on previous court of appeal authorities relating to testamentary promises . The reasoning in Cobbe left the doctrine in an uncertain position and â€Å"If taken literally, this reformulation would have curtailed the reach of estoppel, and perhaps that was the point†. Thorner v Major gave the House of Lords a chance to address these uncertainties and a further opportunity to clarify the doctrine definitively via the role of unconscionability. From the beginning the Lords made it clear that the decision in Cobbe had not â€Å"severely curtailed, or even virtually extinguished, the doctrine of proprietary estoppel (a rather apocalyptic view that has been suggested by some commentators).† Thorner dealt with proprietary estoppel in the domestic context. One cousin had worked unpaid on the other’s farm for nearly 30 years on the understanding that he would inherit the farm on his cousin’s death. The cousin died intestate and the claim of proprietary estoppel had been rejected by the Court of Appeal. One reason given for this failure was that the extent of the farm had fluctuated in the preceding years and so the interest the claimant expected to receive was not a sufficiently ‘certain interest’ as required following Cobbe. The Lords in Thorner made it clear that â€Å"the reasoning in Cobbe’s case†¦was directed to the unusual facts of that case† and that in Cobbe â€Å"there was no doubt about the physical identity of the property. However, there was total uncertainty as to the†¦property interest†¦In this case†¦there is†¦no doubt as to what was the subject of the assurance, namely the farm as it existed from time to time. Accordingly, the nature of the interest to be received by David was clear: it was the farm as it existed on Peter’s death. They confirmed that the assurances â€Å"should relate to identified property owned (or, perhaps, about to be owned) by the defendant.† and that â€Å"It would represent a regrettable and substantial emasculation of the beneficial principle of proprietary estoppel if it were artificially fettered so as to require the precise extent of the property the subject of the alleged estoppel to be strictly defined in every case.† Context is vital, whereas a specific certainty may be required in a commercial situation, this will not necessarily be required in a domestic context. The Court of Appeal had also required that the nature of the assurance be â€Å"clear and unequivocal† . This test for clarity of assurance was that required in promissory estoppel, and may have been adopted here due to the conflation of the two forms of estoppel by Lord Scott in Cobbe . The parties in Thorner were â€Å"taciturn and undemonstrative men† and the assurances mainly consisted of â€Å"oblique remarks† and therefore it was held that these assurances lacked the requisite certainty. The House of Lords loosened this restriction stating that â€Å"I would prefer to say †¦that to establish a proprietary estoppel the relevant assurance must be clear enough. What amounts to sufficient clarity, in a case of this sort, is hugely dependent on context† . As â€Å"the relationship between Peter and David was familial and personal, and neither of them†¦had much commercial experience†¦Peter made what were, in the circumstances, clear and unambiguous assurances that he would leave his farm to David, and David reasonably relied on, and reasonably acted to his detriment on the basis of, those assurances, over a long period.† The House of Lords had made it abundantly clear once again that everything is dependent on context. In a domestic context such as Thorner an oblique assurance may be ‘clear enough’ even though a commercial case such as in Cobbe may require a much more specific assurance. Lord Walker also rejected Lord Scott’s characterisation of estoppel â€Å"I have some difficulty with Lord Scott’s observation†¦that proprietary estoppel is a sub-species of promissory estoppel.† The House of Lord’s in Thorner also clarified that the correct approach for landowner’s intention was an objective test and that it was â€Å"enough that the meaning he conveyed would reasonably have been understood as intended to be taken seriously as an assurance which could be relied upon†¦It is not necessary that Peter should have known or foreseen the particular act of reliance†. The House of Lords allowed the proprietary estoppel claim to succeed even tho ugh there was no evidence that the claimant believed that the assurance was legally binding, therefore also rejecting Lord Walker’s restriction in Cobbe. Thorner had maintained a flexible approach to proprietary estoppel making it clear that everything was â€Å"hugely dependent on context†, re-affirming the holistic approach found in Gillett that â€Å"in the end the court must look at the matter in the round.† Lord Neuberger stated that â€Å"it appears to me unlikely in the extreme that Lord Scott was intending impliedly to disapprove any aspect of the reasoning or decision of the Court of Appeal in Gillett’s case† Thorner effectively placed the doctrine back in the position it stood before Cobbe. It was said that the decision in Thorner had â€Å"brought proprietary estoppel back from the brink. The apocalypse†¦has been averted and proprietary estoppel can continue to function as an independent source of rights. It can thus perform its vital role as a broad and flexible doctrine.† Thorner has clarified some of the uncertainties surrounding the traditional elements of proprietary estoppel that had been raised in Cobbe and followed in the Court of Appeal. It returned the formulation to a flexible and broad definition requiring ‘identifiable property’ that the assurance must be â€Å"in the circumstances, clear and unambiguous† and that the assurance must â€Å"reasonably have been understood as intended to be taken seriously as an assurance which could be relied upon. Thorner did not however say anything regarding role of unconscionability, only affirming the uncontroversial position taken by Cobbe, whilst confirming the flexibility of the doctrine. â€Å"Concentrating on the perceived morality of the parties’ behaviour can lead to an unacceptable degree of uncertainty of outcome, and hence I welcome the decision in Cobbe’s case†¦However, it is equally true that focussing on technicalities can lead to a degree of strictness inconsistent with the fundamental aims of equity† . Some commentators believe that this was an opportunity missed as â€Å"Lord Scott may have chosen the wrong train to ride in Yeoman’s Row, but it is not clear that he chose the wrong destination† Defining ‘unconscionability’ is a difficult task and commentators have their own competing theories. Dixon believes that â€Å"an estoppel is made out when a landowner makes a ‘double assurance’ – an assurance that the claimant will have some right over the representor’s land†¦combined with an assurance that the right will ensue even if the formalities necessary to convey that right are not complied with†¦Unconscionability exists when a ‘formality assurance’ is withdrawn after detrimental reliance † Balen and Knowles believe that â€Å"this â€Å"extra ingredient†, for so long described as â€Å"unconscionability†, requires the court to ask whether the basis, or condition, on which the claimant incurred her detriment has failed.† There is no consensus as to how unconscionability should be defined only that it should. It may be that the judiciary have missed an opportunity to clarify the doctrine or it could be that they have no desire to â€Å"define unconscionability and thereby limit the application of the doctrine†¦Uncertainty can be a benefit as well as a burden, and while unconscionability of itself cannot generate an estoppel, the claim can be denied despite t he presence of an assurance, reliance and detriment by judicious deployment of the ‘unconscionability’ card†.

Influence of Neoclassicism on Romanticism

Niccolo Machiavelli once said, â€Å"whoever wishes to foresee the future must consult the past†, seems to sum the influence of past artistic styles on works of art across varying time periods. Neoclassicism, a popular art style in the 18th and early 19th century drew inspiration from Roman and Greek culture, it rose in response to a desire to revive the classical art period, whilst Romanticism, an art style that became popular at the end of the neoclassical period, embraced medievalism and revolted against the Age of Enlightenment and the classics that was the heart of the Neoclassical movement. Whether artists chose to embrace past styles or deviate from them, either way they are influenced by them. Despite contrasting views and techniques between the two periods, Romanticism grew out of Neoclassicism. Neoclassicism can be defined as the revival of the classical style in art, literature, architecture and music. It was an influential style in art during the 18th and 19th cent ury that lasted from the 1760’s until the 1850’s. Neoclassicism rose in reaction to the Rocco and Baroque styles that were popular during the middle of the 18th century in the United States and Western Europe especially France.Neoclassicism was the result of a renewed interest in ancient Greek and Roman culture as a result of archeological discoveries of buried Roman cities of Pompeii and Herculaneum, which brought about new inspiration. The Neoclassical era was also called the Age of Enlightenment as the Industrial Revolution was taking place. There were many new inventions and this lead to the growth of many factories. With new inventions, there was new knowledge, hence the reference to enlightenment and â€Å"neo† which means new.During the Neoclassical period, artists also focused on moral revivalism due to admiration for philosophers like Aristotle and Plato and also reflected on the Renaissance era. Neoclassical artists looked to the past as a guide to the present because of the assumption that human nature was constant. They did not strive to be original but to express â€Å"old truths in a newly effective way†. Neoclassical artists emphasized distinct characteristic styles in their work. These included the themes of patriotism, justice and honor.French artists of the Neoclassical movement drew parallels between ancient Rome and France. During the Neoclassical period, France was fighting the French Revolution and citizens reshaped France by uprooting the absolute monarchy. Neoclassicism appealed to artists who were in support of the French Revolution . French artist, Jacques-Louis David, The Oath of the Horatii 1784 is one of the most renowned paintings of the Neoclassical era. It depicts a scene of two warring cities in Rome, in which three brothers are preparing to fight for their country, which demonstrated patriotism.Other characteristic styles of this period included clean lines, symmetry and restraint in emotion. Painti ngs featured vivid contrast between light and dark colors. These features can be seen in The Oath of Horatii in which clean lines and symmetry can be seen in the depiction of Roman columns and the standing position of the brothers, the only emotion depicted is that of the women portrayed in the painting. The background color is dark compared to the foreground, which is bright and vivid, emphasizing the soldiers, which was a main technique used by the artists .Another feature characteristic of Neoclassicism was the attempt to depict in great detail, the setting and costumes of the era with as much historical accuracy. Joseph-Marie Vien, Young Greek Maidens Decking the Sleeping Cupid with Flowers 1773 demonstrates this attention to detail, as the center point of this painting is the three Greek maidens whose dress is executed with great detail and vivid colors. Romanticism began during the 18th century and lasted until the 19th century just as Neoclassicism, with Romanticism peaking a fter the neoclassical period.Romanticism grew out of a need to express the emotions and the adoration of nature that Romanticists felt had become lost during the Age of Enlightenment. They sought to search the subconscious and spirituality for answers rather than pure logic of the Neoclassical period. Other themes distinctive to this period were supernatural elements and historical nostalgia. Romanticism was especially popular in Britain and Germany. It was a reaction to the dehumanization that occurred during Neoclassicism due to industrialization.Romanticism bore many characteristics such as appreciation for nature, it saw nature as an escape from the dehumanization caused by industrialization. It examined the power of nature as evident in Philip James de Loutherbourg, An Avalanche in the Alps 1803 that depicted an avalanche so awesome that it terrified the people in the foreground of the painting. Another characteristic style of the Romantic period was the revival of past styles such as medievalism. Medieval ruins were an inspiration to these artists, and can be seen in paintings such as Gaspar David Friedrich, Eldena Ruin 1825.The supernatural was another theme explored by the Romantics. Ghosts, fairies and demons were symbolic of the rejection of materialism for spiritualism; this was depicted in William Blake, The Great Red Dragon and the Women Clothed with the Sun 1805 that portrays a dragon from the Book of Revelation. Artists during this period sought to express as much emotion they could in their artwork. There were expressions on every face including animals and humans; an example of this is Theodore Gericault, Mad Woman With A Mania of Envy 1822-1823 in which he depicts an old woman with a worrisome expression and uncanny stare.Neoclassicism and Romanticism were two art styles that were popular during the 18th and 19th Century. Neoclassicism celebrated the classics such as the Greek and Roman culture. It was a rebirth of the new classical period an d artists sought to emphasize on patriotism, honor and justice. Many paintings depicted Roman soldiers and Greek temples and philosophers and were in support of the French Revolution whilst Romanticism drew emphasis on emotions and nature; it celebrated the modern and the medieval time.Romanticism embraced the individuality of the painter, who drew on creativity to paint rather than adherence to rules and tradition like their Neoclassic counterparts. Neoclassicism celebrated the French Revolution and Industrialization, which Neoclassicists saw as enlightenment as there were new ancient findings and industrialization, which brought new knowledge. Artists inspired by the Romantic period saw enlightenment as dehumanizing. They rebelled against conformity to societal norms to which Neoclassicists saw as being of great importance.Romanticism was more creative than Neoclassicism; it sought to draw on spirituality and emotion, as Romanticists believed that not all questions could be answer ed by rationality but rather by irrationality. Neoclassical painters stressed drawing with lines and symmetry which is symbolic of living within the lines of conformity, they also used vivid color contrast with light and dark with no visible brushstrokes to draw interest to the main focus of the art piece. However, Romanticism used rich color, and a painterly technique with no distinct lines and visible brushstrokes in their works.Subjects depicted in Neoclassical art were from Roman and Greek history whilst Romantic artists subjects were legends, ghosts, witches, violence and nature. The role of Neoclassicism was to morally uplift as depicted in The Oath of Horatii in which men were strong and loyal to France, whilst Romanticism sought to create a dramatic effect that would take the viewer away as seen in An Avalanche in the Alps in which the avalanche is so magnificent and terrifying at the same time.When examining renowned paintings from both artistic periods: Neoclassicism and R omanticism, Neoclassicist Jacques-Louis David, The Oath of the Horatii and Romanticist Joseph Mallord William Turner, The Slave Ship are some of the most renowned paintings of their respective eras. The Oath of Horatii depicts a scene in which three brothers take swords from their father. The men are dressed in red, white and blue that represented the colors of France. This was thought to inspire patriotism, as it was symbolic of the brothers fighting for the good of country.In contrast to the theme of patriotism and the fight for the greater good of all, the Slave Ship sought to inspire anti-slavery efforts and the fight for human kind versus country as in the Neoclassical period. The Oath of Horatii can be viewed as celebrating the Industrial Revolution as it inspired the French to fight for economic progress whilst The Slave Ship revolted against Industrialization, which it viewed as the exploitation of slaves and human labor for economic growth.Another feature was the use of col or; in The Oath of Horatii, the background is dark compared to the vivid colors of the foreground, allowing the focus to be on the brothers hence reinforcing the theme of loyalty and patriotism. The brushstrokes are controlled and there are distinct lines, which is seen in the position in which the men stand, point their swords. Lines are symbolic of conformity, which can be viewed as staying between the lines. In The Slave Ship, brushstrokes are soft, colors are bright as seen in the deep red sunset and are blended in so there in no distinct lines.The symbolism of the lack of lines represents man’s freedom to choose and his individuality. The use of color draws attention to the background rather than the foreground, which makes the sky the main focus point. Human nature is also explored in The Oath of Horatii; the human need to stand strong in the face of adversity is depicted by the men in the painting, all of who raise their hands to their father in support of the fight un like the women who seemed fearful and crouched over in distress. In The Slave Ship, nature depicted does not refer to human nature but simply, nature.Neoclassicism used humans as their subjects and Romanticism used nature as their subjects. The rough sea and the majestic sky are the main focus in this artwork, which celebrates nature and shows how powerful nature is as the dead slaves are visible in the water along with nature’s creatures that are feeding on human carcass. The Oath of Horatii is symbolic of Neoclassicism as it depicts patriotism, linear painting technique, use of light and dark colors and human nature, which are characteristic of this era.The Slave Ship is representative of the style of Romanticism; it depicts revolt against industrialization, nature, use of painter techniques and bright colors. Romanticism influenced the future art world by leaving its legacy behind and for others to follow and lead to new artistic styles. It stimulated the birth of many art schools such as the Norwich School of Landscape Painting, which was the first provincial arts body to hold exhibitions in Britain during the 19th century. Famous artists from this school included John Crome who was famous for his paintings depicting sceneries of Norfolk.Another school influenced by the Romantic art style was the St Ives School of Art in England which flourished in the 20th century with its paintings being displayed today at the best art museums in the world such as the British Art Museum. St Ives School of Art later became renowned for its abstract sculptures and paintings that led to the development of modern art including Avant-Garde art that pushed the boundaries of cultural norms. Romanticism can be see as influential to the development of Avant-Garde as it began as a deviation from norms of society.Famous artists from this school included Barbara Hepworth and Ben Nicholson who were renowned their abstract art and cement sculptures. Romanticism calls for the ar tist to be creative and not follow the classics. Marcel Duchamp, Fountain 1917 in which he exhibits a ready made urinal as a piece of art can be seen as being influenced by Romanticism as it asks for the artist to be creative. Hence we can see Avant-Garde and Dadaism being influence by Romanticism . Whether artists chose to embrace past styles or deviate from them, either way they are influenced by them.Both Neoclassicism and Romanticism were popular art styles in the 18th and early 19th century, with Romanticism occurring during the later years. Neoclassicism drew inspiration from Roman and Greek culture and embraced the classics while Romanticism drew inspiration from emotions, nature and the historical period of medievalism. Romanticism grew out of contempt for the basic foundation of the Neoclassical era as Romantics felt that the Age of Enlightenment suppressed our creativity and dehumanized us, despite their contrasting views, we can see the influence of Neoclassicism on Roman ticism.

My philosophy for advanced practice nursing Essay

My philosophy for advanced practice nursing (APN) is an extension of the philosophy of my nursing practice. I plan to form a partnership with my patients in which compassionate, holistic, evidence based care will lead to the patient maintaining optimal health and wellness. Advance Practice Nurses focus entirely on the patient by compassionately addressing every aspect of the patient’s needs. My goal is to educate and encourage the patient to become responsible for his/her health by working diligently with the healthcare team. An APN’s primary focus should be to address and remove the underlying cause of illness rather than to merely alleviate the presenting symptoms. This can be done by addressing underlying issues that can hinder the healing process and establish a plan to remove these obstacles in order to promote holistic healing. I value treating the whole patient (emotional, genetic, environmental, social, physical, spiritual, and other factors) and offering means of wellness in conjunction with traditional options (Nightingale, 1954). Nurse Practitioners provide the patient with a holistic care that includes not only exercise, nutrition, environment, and stressors, but also considers the client’s cultural world view (Dossey, 2010). When this approach is taken, each patient is able to experience an individualized plan of treatment. As I step out of the role of bedside nurse and embrace the role of an APN, I look forward to the additional responsibilities of diagnosing and treating patients which will afford me a greater role in the improvement of my patient’s health. This advanced role in designing and implementing plans of treatment empowers the APN to provide complete patient care. The APN role also allows me the opportunity to educate my patients, their families and the community on measures to improve health and prevent future illnesses. I look forward to advancing as a professional because, as I do so, I can make a difference by implementing and improving patient care and teaching others. References Dossey, B. (2010). Holistic nursing: from Florence Nightingale’s historical legacy to 21st-century global nursing. Alternative Therapies in Health and Medicine, 16(5), 14-16. Nightingale, F. (1954). Notes on nursing: What it is and what it is not. In L.R. Seymer (Ed.), selected writings of Florence Nightingale (p.123-220). New York: Macmillan. (Original work published 1859).