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Change of Position Defence [Kõva köide]

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(The University of Western Australia)
  • Formaat: Hardback, 286 pages, kõrgus x laius x paksus: 234x156x22 mm, kaal: 604 g
  • Ilmumisaeg: 27-May-2009
  • Kirjastus: Hart Publishing
  • ISBN-10: 1841139653
  • ISBN-13: 9781841139654
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Change of Position DefenceSuurem pilt
  • Formaat: Hardback, 286 pages, kõrgus x laius x paksus: 234x156x22 mm, kaal: 604 g
  • Ilmumisaeg: 27-May-2009
  • Kirjastus: Hart Publishing
  • ISBN-10: 1841139653
  • ISBN-13: 9781841139654
Teised raamatud teemal:
Püsilink: https://www.kriso.ee/db/9781841139654.html
Märksõnad:
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"'.

Arvustused

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 April 2010, 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 June 2010 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 2010 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, 2010

Preface v
Table of Cases
xi
Table of Statutes
xvii
Introduction and Overview
1(22)
Introduction
1(1)
The Change of Position Defence
2(7)
A Core Case
2(1)
The Four Main Areas of Doubt
3(1)
The Reliance Issue
4(1)
The Fault Issue
4(4)
The Ambit of Operation Issue
8(1)
The Rationale Issue
9(1)
Underlying Assumptions
9(6)
Introduction
9(1)
The Nature of Unjust Enrichment
10(3)
Restitution and Unjust Enrichment
13(1)
A Fusionist Approach
14(1)
Methodology and Overview
15(8)
Introduction
15(1)
Foundations
16(2)
Definition
18(2)
Ramifications
20(3)
Part One: Foundations
23(100)
Lessons from Estoppel by Representation
25(40)
Introduction
25(2)
Elements of Estoppel by Representation
27(26)
Representation
27(1)
Reliance
28(1)
The Meaning of Reliance
28(2)
The Role of Reliance as a Causal Requirement
30(1)
The Applicable Test of Causation
31(8)
Proving Reliance
39(1)
A Residual, Evidential Role for the `But For' Test
40(1)
The Normative Significance of Reliance
40(1)
Lessons for the Change of Position Defence
41(2)
The `Reasonableness' Requirement
43(1)
The Defendant's Reliance must be Reasonable
43(2)
The Standard of Reasonableness and its Relationship to Good Faith
45(1)
The Function of the Reasonableness Requirement
45(2)
Lessons for the Change of Position Defence
47(1)
Detriment
48(1)
The Meaning of Detriment
48(1)
The Time for Assessing the Detrimental Change of Position
48(2)
Detrimental Changes of Position include Omissions and Non-pecuniary Changes
50(1)
The Change of Position must be Irreversible
51(2)
Lessons for the Change of Position Defence
53(1)
Bars to the Defence
53(9)
Defendant at Fault in Inducing the Representation
54(5)
Defendant in Breach of Duty
59(3)
Illegality
62(1)
Conclusion
62(3)
Lessons from the Defence of Payment Over by an Agent
65(24)
Introduction
65(2)
The Requirement of Payment Over
67(8)
Notice
75(4)
Bars to the Defence
79(8)
Conclusion
87(2)
Lessons from Rescission
89(34)
Introduction
89(1)
Restitutio in Integrum
89(29)
Rescission and the Requirement of Restitutio in Integrum
89(4)
The Requirement of Counter-restitution
93(1)
Rationale
93(1)
Elements and Operation
94(8)
Application of the Two Claims Approach to Rescission Cases
102(1)
The Defendant's Changes of Position
103(1)
Change by Exchange
103(4)
Independent Changes in the Received Benefit
107(1)
Defendant-instigated Changes of Position
108(6)
The Claimant's Changes of Position
114(1)
Independent Changes in the Received Benefit
114(1)
Claimant-instigated Changes of Position
115(2)
An Irreconcilable Tension?
117(1)
Conclusion
118(5)
Rationale
118(1)
Elements
119(2)
Ambit of Operation
121(2)
Part Two: Definition
123(98)
Primary Elements
125(40)
Introduction
125(1)
Elements
126(36)
A Detrimental Change of Position
126(1)
Detriment as `Disenrichment'
126(4)
Detriment as `Irreversibility'
130(4)
The Irreversibility Approach is to be Preferred
134(4)
Proving the Irreversible Change of Position
138(5)
Causation
143(1)
Introduction
143(2)
But-for Causation in Cases of Independent Changes of Position
145(1)
Good Faith in Cases of Independent Changes of Position
146(1)
Reliance in Cases of Defendant-instigated Changes of Position
147(4)
Reliance must be Reasonable
151(4)
Anticipatory Changes of Position
155(2)
Proving Causation
157(3)
The Impact of Third Parties
160(2)
Conclusion
162(3)
Fault as a Bar to the Defence
165(28)
Introduction
165(1)
Wrongdoers
166(6)
Duress and Undue Influence
172(5)
The Innocent Inducer
177(7)
Illegality and Legal Stultification
184(3)
Fault in the Defendant's Change of Position
187(4)
Conclusion
191(2)
Ambit of Operation
193(18)
Introduction
193(1)
Application to Claims in Unjust Enrichment
193(16)
Mistake
193(2)
Duress and Undue Influence
195(2)
Failure of Consideration
197(1)
No Intention to Benefit
198(5)
Policy-motivated Unjust Factors
203(1)
Cases of Proprietary Restitution
204(5)
Application to Claims outside Unjust Enrichment
209(1)
Conclusion
210(1)
Rationale
211(8)
Introduction
211(1)
Disenrichment
211(1)
Autonomy
212(2)
Security of Receipt
214(1)
A Harm-based Rationale
215(2)
A Mixed Rationale of Protection and Prophylaxis
217(1)
Conclusion
218(1)
Conclusion
219(2)
Part Three: Ramifications
221(36)
Ramifications
223(34)
Introduction
223(1)
Estoppel by Representation
224(6)
Payment Over and Ministerial Receipt
230(4)
Restitutio in Integrum
234(3)
Good Consideration
237(2)
Bona Fide Purchase
239(4)
Statutory Change of Position Defences
243(11)
Conclusion
254(3)
Index 257
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.