In certain parts of rural Wales in the Middle Ages it was accepted that even in the absence of a written document you could still be bound by a promise made before your peers if it was ratified by a kiss.
For example, a child could be welcomed into a family and openly acknowledged as a lawful heir minimising the likelihood of a future blood feud, which could have had horrific consequences in an essentially close-knit and otherwise peaceful community.
Hundreds of years later the doctrine of proprietary estoppel is being used increasingly by the courts as a way of ensuring that equitable rights over property can be enforced even though the parties do not enter into any written contract or trust deed (interestingly enough, particularly in relation to farms in Wales and Somerset).
Lord Denning was at the centre of the legal establishment until the age of 80 and during his tenure as Master of the Rolls he was respected — if not admired — for his use of plain English and his knack of setting his judgements in the everyday world. Years after his retirement, his use of equitable principles to justify the “right” result in individual cases is being reactivated in order to justify the transfer of property and other assets to recipients based on a spoken promise provided that certain elements of representation; reliance and detriment to the claimant in consequence of such reliance are met.
Land law practitioners have been brought up with the notion that the only way to transfer title to land and buildings between two parties is by way of a formal lease or document of transfer or assent registered where necessary at the land registry. However, recent cases (which include that of a farmer’s daughter who worked on a west Carmarthenshire farm with little or no payment on the basis that she would inherit the entire estate) show that an oral promise can override someone’s will, even without a duly executed deed of transfer.
Conveyancers like certainty in the law, whilst litigators relish the testing, or establishment, of legal principles through the courts. Inevitably, this can lead to conflict, particularly as litigation is increasingly being subsidised by third party litigation funders who take sizeable chunks of the damages or property, if successful. This can be substantial where cases deal with agricultural properties and those claimants who are successful probably thank their lucky stars that Lord Denning reactivated a long forgotten doctrine that is once again at the forefront of English property law.
It also goes to show that Hollywood mogul, Sam Goldwyn, may have been incorrect when he allegedly said: “A verbal contract isn’t worth the paper it’s written on!”.