The Change of Position Defence by Elise Bant - Bookswagon
close menu
Bookswagon
search
My Account
Book 1
Book 2
Book 3
Book 1
Book 2
Book 3
Book 1
Book 2
Book 3
Book 1
Book 2
Book 3
Home > Law Books > Jurisprudence and general issues > Comparative law > The Change of Position Defence
The Change of Position Defence

The Change of Position Defence


     0     
5
4
3
2
1



Out of Stock


Notify me when this book is in stock
X
About the Book

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

About the Author :
Elise Bant is an Associate Professor of Law at the University of Melbourne Law School and Honorary Fellow (and former Senior Lecturer) at The University of Western Australia.

Review :
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. 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. 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. 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.


Best Sellers


Product Details
  • ISBN-13: 9781847315076
  • Publisher: Bloomsbury Publishing PLC
  • Publisher Imprint: Hart Publishing
  • Language: English
  • ISBN-10: 1847315070
  • Publisher Date: 27 May 2009
  • Binding: Digital (delivered electronically)
  • No of Pages: 286


Similar Products

Add Photo
Add Photo

Customer Reviews

REVIEWS      0     
Click Here To Be The First to Review this Product
The Change of Position Defence
Bloomsbury Publishing PLC -
The Change of Position Defence
Writing guidlines
We want to publish your review, so please:
  • keep your review on the product. Review's that defame author's character will be rejected.
  • Keep your review focused on the product.
  • Avoid writing about customer service. contact us instead if you have issue requiring immediate attention.
  • Refrain from mentioning competitors or the specific price you paid for the product.
  • Do not include any personally identifiable information, such as full names.

The Change of Position Defence

Required fields are marked with *

Review Title*
Review
    Add Photo Add up to 6 photos
    Would you recommend this product to a friend?
    Tag this Book Read more
    Does your review contain spoilers?
    What type of reader best describes you?
    I agree to the terms & conditions
    You may receive emails regarding this submission. Any emails will include the ability to opt-out of future communications.

    CUSTOMER RATINGS AND REVIEWS AND QUESTIONS AND ANSWERS TERMS OF USE

    These Terms of Use govern your conduct associated with the Customer Ratings and Reviews and/or Questions and Answers service offered by Bookswagon (the "CRR Service").


    By submitting any content to Bookswagon, you guarantee that:
    • You are the sole author and owner of the intellectual property rights in the content;
    • All "moral rights" that you may have in such content have been voluntarily waived by you;
    • All content that you post is accurate;
    • You are at least 13 years old;
    • Use of the content you supply does not violate these Terms of Use and will not cause injury to any person or entity.
    You further agree that you may not submit any content:
    • That is known by you to be false, inaccurate or misleading;
    • That infringes any third party's copyright, patent, trademark, trade secret or other proprietary rights or rights of publicity or privacy;
    • That violates any law, statute, ordinance or regulation (including, but not limited to, those governing, consumer protection, unfair competition, anti-discrimination or false advertising);
    • That is, or may reasonably be considered to be, defamatory, libelous, hateful, racially or religiously biased or offensive, unlawfully threatening or unlawfully harassing to any individual, partnership or corporation;
    • For which you were compensated or granted any consideration by any unapproved third party;
    • That includes any information that references other websites, addresses, email addresses, contact information or phone numbers;
    • That contains any computer viruses, worms or other potentially damaging computer programs or files.
    You agree to indemnify and hold Bookswagon (and its officers, directors, agents, subsidiaries, joint ventures, employees and third-party service providers, including but not limited to Bazaarvoice, Inc.), harmless from all claims, demands, and damages (actual and consequential) of every kind and nature, known and unknown including reasonable attorneys' fees, arising out of a breach of your representations and warranties set forth above, or your violation of any law or the rights of a third party.


    For any content that you submit, you grant Bookswagon a perpetual, irrevocable, royalty-free, transferable right and license to use, copy, modify, delete in its entirety, adapt, publish, translate, create derivative works from and/or sell, transfer, and/or distribute such content and/or incorporate such content into any form, medium or technology throughout the world without compensation to you. Additionally,  Bookswagon may transfer or share any personal information that you submit with its third-party service providers, including but not limited to Bazaarvoice, Inc. in accordance with  Privacy Policy


    All content that you submit may be used at Bookswagon's sole discretion. Bookswagon reserves the right to change, condense, withhold publication, remove or delete any content on Bookswagon's website that Bookswagon deems, in its sole discretion, to violate the content guidelines or any other provision of these Terms of Use.  Bookswagon does not guarantee that you will have any recourse through Bookswagon to edit or delete any content you have submitted. Ratings and written comments are generally posted within two to four business days. However, Bookswagon reserves the right to remove or to refuse to post any submission to the extent authorized by law. You acknowledge that you, not Bookswagon, are responsible for the contents of your submission. None of the content that you submit shall be subject to any obligation of confidence on the part of Bookswagon, its agents, subsidiaries, affiliates, partners or third party service providers (including but not limited to Bazaarvoice, Inc.)and their respective directors, officers and employees.

    Accept


    Inspired by your browsing history


    Your review has been submitted!

    You've already reviewed this product!