菲普森论证据-(第17版) 节选

　　Further， it has been stated by way of dictum in the House of Lords，32 in the course of a speech with which three of the other law lords agreed， that the then view of the law lord in question was that "proprietary estoppel cannot be prayed in aid in order to render enforceable an agreement that statute has declared to be void". The only other law lord to give a reasoned speech33 did not think it necessary or appropriate to consider this issue， perhaps unsurprisingly in light of the fact that he had given the principal judgment in the original decision of the Court of Appeal that the Law of Property （Miscellaneous Provisions） Act 1989 s.2 could be "outfianked" in this way. It may， however， be relevant that the latter law lord had akeady by then， in a decision which did not directly concern equitable proprietary estoppels，34 said that， despite his earlier judgment， he was "now rather less enthusiastic about the notion that proprietary estoppel and 'common interest' constructive trusts can or should be completely assimilated" because the former is a claim to a mere equity while the latter identifies the existence and size of beneficial interests.　　Quite where all this leaves the original decision of the Court of Appeal that the Law of Property (Miscellaneous Provisions） Act 1989 s.2 could be "outfianked" in this way and， for that matter， the law remains to be seen. However， it seems to follow from the remaining remarks of the law lord with whose speech the three other law lords agreed that at least he thought (and possibly the other three law lords also thought） that， while the existence of a constructive trust can render enforceable a contract which is prima facie void for failure to comply with Law of Property (Miscellaneous Provisions） Act 1989 s.2 (because of the existence of the specific exemption for constructive trusts in s.2(5））， the existence of an equitable proprietary estoppel will not， on its own and without more， any longer be capable of giving rise to the imposition of a constructive trust; if this proves to be the case， the statutory exemption willin future only be capable of applying where a constructive trust has been imposed for some other reason. This would not necessarily render incorrect the outcome， as distinct from the reasoning， of the original decision of the Court of Appeal that the Law of Property (Miscellaneous Provisions） Act 1989 s.2 could be "outfianked" since in that case a constructive trust could conceivably have been held to have arisen on the different basis that the parties had entered into what was to all intents and purposes a joint venture.35　　More generally the original and specific disapproval by the Court of Appeal of the notion that there are any "no go areas" for estoppels was anyway qualified by a subsequent comment in that case that the operation of equitable proprietary estoppels could nevertheless be restricted in the face of such statutory enact- ments. Whether it was to be restricted in a particular case depended upon an analysis of the "general social policy" behind the enactment; this was not simply a question of wording but also of statutory intent.　　……

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