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The Change of Position Defence

By: Elise Bant
Media of The Change of Position Defence
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Published: 27-05-2009
Format: Hardback
Edition: 1st
Extent: 286
ISBN: 9781841139654
Imprint: Hart Publishing
Dimensions: 234 x 156 mm
RRP: £95.00
Online price : £85.50
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About The Change of Position Defence

This book defines and explains the operation of the defence of change of position in Anglo-Australian law.

It is a widely accepted view that the defence is a modern development, the first express recognition of which can be traced in England to the seminal decision of the House of Lords in Lipkin Gorman (a firm) v Karpnale Ltd. Commentators have accordingly tended to focus on post-Lipkin case law in discussing the defence and its many disputed features.

This work takes a different stance, arguing that the defence is best understood by placing it within its broader historical and legal context. It explains that the foundations of the defence can be found in the related doctrines of estoppel by representation, the agent's defence of payment over and the law of rescission. The analysis applies crucial insights from those areas, together with the change of position authorities and broader considerations of policy and principle, to develop a rigorous model of the change of position defence.

The work not only provides a clear and exhaustive examination of the defence, but demonstrates that, properly understood, the defence operates in a rational and justifiable manner within its broader private law context. In so doing, its analysis meets the oft-expressed concern than the defence may operate in an unprincipled way or by reference to 'that vague jurisprudence which is sometimes attractively styled "justice as between man and man"'.

Table Of Contents

1. Introduction and Overview
A Introduction
B The Change of Position Defence
(1) A Core Case
(2) The Four Main Areas of Doubt
(a) The Reliance Issue
(b) The Fault Issue
(c) The Ambit of Operation Issue
(d) The Rationale Issue
C Underlying Assumptions
(1) Introduction
(2) The Nature of Unjust Enrichment
(3) Restitution and Unjust Enrichment
(4) A Fusionist Approach
D Methodology and Overview
(1) Introduction
(2) Part One-Foundations
(3) Part Two-Definition
(4) Part Three-Ramifications
Part One: Foundations
2. Lessons from Estoppel by Representation
A Introduction
B Elements of Estoppel by Representation
(1) Representation
(2) Reliance
(a) The Meaning of Reliance
(b) The Role of Reliance as a Causal Requirement
(c) The Applicable Test of Causation
(d) Proving Reliance
(e) A Residual, Evidential Role for the 'But For' Test.
(f) The Normative Significance of Reliance
(g) Lessons for the Change of Position Defence
(3) The 'Reasonableness' Requirement
(a) The Defendant's Reliance must be Reasonable
(b) The Standard of Reasonableness and its Relationship to Good Faith
(c) The Function of the Reasonableness Requirement
(d) Lessons for the Change of Position Defence
(4) Detriment
(a) The Meaning of Detriment
(b) The Time for Assessing the Detrimental Change of Position
(c) Detrimental Changes of Position include Omissions and Non-pecuniary Changes
(d) The Change of Position must be Irreversible
(e) Lessons for the Change of Position Defence
C Bars to the Defence
(1) Defendant at Fault in Inducing the Representation
(2) Defendant in Breach of Duty
(3) Illegality
D Conclusion
3. Lessons from the Defence of Payment Over by an Agent
A Introduction
B The Requirement of Payment Over
C Notice
D Bars to the Defence
E Conclusion
4. Lessons from Rescission
A Introduction
B Restitutio in Integrum
(1) Rescission and the Requirement of Restitutio in Integrum
(2) The Requirement of Counter-restitution
(a) Rationale
(b) Elements and Operation
(c) Application of the Two Claims Approach to Rescission Cases
(3) The Defendant's Changes of Position
(a) Change by Exchange
(b) Independent Changes in the Received Benefit
(c) Defendant-instigated Changes of Position
(4) The Claimant's Changes of Position
(a) Independent Changes in the Received Benefit
(b) Claimant-instigated Changes of Position
(c) An Irreconcilable Tension?
C Conclusion
(1) Rationale
(2) Elements
(3) Ambit of Operation
Part Two: Definition
5. Primary Elements
A Introduction
B Elements
(1) A Detrimental Change of Position
(a) Detriment as 'Disenrichment'
(b) Detriment as 'Irreversibility'
(c) The Irreversibility Approach is to be Preferred
(d) Proving the Irreversible Change of Position
(2) Causation
(a) Introduction
(b) But-for Causation in Cases of Independent Changes of Position
(c) Good Faith in Cases of Independent Changes of Position
(d) Reliance in Cases of Defendant-instigated Changes of Position
(e) Reliance must be Reasonable
(f) Anticipatory Changes of Position
(g) Proving Causation
(3) The Impact of Third Parties
C Conclusion
6. Fault as a Bar to the Defence
A Introduction
B Wrongdoers
C Duress and Undue Influence
D The Innocent Inducer
E Illegality and Legal Stultification
F Fault in the Defendant's Change of Position
G Conclusion
7. Ambit of Operation
A Introduction
B Application to Claims in Unjust Enrichment
(1) Mistake
(2) Duress and Undue Influence
(3) Failure of Consideration
(4) No Intention to Benefit
(5) Policy-motivated Unjust Factors
(6) Cases of Proprietary Restitution
C Application to Claims outside Unjust Enrichment
D Conclusion
8. Rationale
A Introduction
B Disenrichment
C Autonomy
D Security of Receipt
E A Harm-based Rationale
F A Mixed Rationale of Protection and Prophylaxis
G Conclusion
9. Conclusion
Part Three: Ramifications
10. Ramifications
A Introduction
B Estoppel by Representation
C Payment Over and Ministerial Receipt
D Restitutio in Integrum
E Good Consideration
F Bona Fide Purchase
G Statutory Change of Position Defences
H Conclusion

Reviews

The Change of Position Defence is a book that the subject has long required. The research is exhaustive ... the analysis well-structured, and the writing is a model of clarity and accessibility.” –  Mitchell McInnes, Law Quarterly Review, Volume 126

“Dr Bant makes some original and insightful points about the change of position defence and the wider law of unjust enrichement … her writing is fresh and clear.
Original and thought provoking … many passages … prompted me to stop and think again about the different aspects of the change of position defence, estoppel, recission, and the more general law of unjust enrichment. A full reading is warmly recommended.
” –  Charles Mitchell, Restitution Law Review

The Change of Position Defence is a necessary and important book.
This accomplished monograph is the product of serious and commendable scholarship. Elise Bant has provided a definitive account of the change of position defence: all those interested in restitution will find her analysis enriching.
” –  James Lee, Lloyd's Maritime and Commercial Law Quarterly

“Bant provides a detailed discussion of every aspect relating to the defence of change to position. Her method, to put the change of position defence into its historical and legal context, proves to be most fruitful and enables her to develop original solutions.
Bant's arguments ... are both rich and powerful.
Bant's book is to be welcomed. The richness of her ideas and arguments, her grip of the authorities over such a wide range of legal institution, and her courage to do comparative work beyond the Common Law world are admirable. Her findings are not only of interest for English and Australian law for which they have been formulated but also to Scots and German lawyers. And she adopts a methodology that is worth closer analysis.

” –  Phillip Hellwege, Edinburgh Law Review, Volume 14

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