The Scope And Rationales Of The Change Of Position Defence
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Author | : Elise Bant |
Publisher | : Bloomsbury Publishing |
Total Pages | : 292 |
Release | : 2009-05-27 |
Genre | : Law |
ISBN | : 1847315070 |
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"'.
Author | : Andrew S. Burrows |
Publisher | : |
Total Pages | : 1101 |
Release | : 2007 |
Genre | : Law |
ISBN | : 0199296510 |
Written by leading experts who have shaped and defined the law of restitution, the book provides an authoritative and scholarly guide to the subject. The second edition of this seminal title continues the formula of the first edition by combining a comprehensive coverage of cases with extracts from leading academic authorities.
Author | : Duncan Sheehan |
Publisher | : Bloomsbury Publishing |
Total Pages | : 241 |
Release | : 2024-02-22 |
Genre | : Law |
ISBN | : 1509942467 |
This ambitious book grapples with the complex debates ongoing on the structure of unjust enrichment, proving to be a major contribution to the field. Responding to the subject's critics, it presents a clearly articulated structure for this branch of private law, arguing that while unjust enrichment has the function of reversing defective enrichments (whether by performance or in another way) there is scope for normative pluralism in how the law achieves this. Drawing heavily on comparative material from Germany, Scotland and South Africa the book then argues for a legal framework which combines elements of the absence of basis and unjust factors approaches. It assesses how that structure can be mapped against the causes of action that make up unjust enrichment, arguing that some are performance claims - reversing a deliberate, intentional performance - and some are non-performance claims. Other claims, often included in books on unjust enrichment, such as necessity should be excluded from the subject area. The book concludes with a treatment of defences.
Author | : Eli Ball |
Publisher | : Bloomsbury Publishing |
Total Pages | : 270 |
Release | : 2016-12-15 |
Genre | : Law |
ISBN | : 178225840X |
This book presents an account of attribution in unjust enrichment. Attribution refers to how and when two parties – a claimant and a defendant – are relevantly connected to each other for unjust enrichment purposes. It is reflected in the familiar expression that a defendant be 'enriched at the claimant's expense'. This book presents a structured account of attribution, consisting of two requirements: first, the identification of an enrichment to the defendant and a loss to the claimant; and, secondly, the identification of a connection between that enrichment and that loss. These two requirements must be kept separate from other considerations often subsumed within the expression 'enrichment at the claimant's expense' which in truth have nothing to do with attribution, and which instead qualify unjust enrichment liability for reasons that should be analysed in their own terms. The structure of attribution so presented fits a normative account of unjust enrichment based upon each party's exchange capacities. A defendant is enriched when he receives something that he has not paid for under prevailing market conditions, while a claimant suffers a loss when he loses the opportunity to charge for something under the same conditions. A counterfactual test – asking whether enrichment and loss arise 'but for' each other – provides the best generalisation for testing whether enrichment and loss are connected, thereby satisfying the requirements of attribution in unjust enrichment.
Author | : Peter Jaffey |
Publisher | : Bloomsbury Publishing |
Total Pages | : 474 |
Release | : 2000-09-16 |
Genre | : Law |
ISBN | : 1847311466 |
Joint Winner of the 2001 SPTL Prize for Outstanding Legal Scholarship! In recent years there has been enormous interest in the law of restitution,with many new books and academic articles and a number of important decisions in the courts. However, there remains great controversy and some confusion, partly for historical reasons and partly as a result of continuing differences over the principles underlying the field. There are particular difficulties over the relation of the law of restitution to other areas of law, including contract and property law. In this new and innovative work the author advances a view of the framework of fundamental principles underlying the law of restitution which offers a means of understanding the tangle of conflicting authorities, and then proceeds to examine the case law in light of it. As part of his analysis, the author suggests new approaches to understanding the areas of overlap between restitution, contract, trusts and property law.
Author | : Elise Bant |
Publisher | : Edward Elgar Publishing |
Total Pages | : 535 |
Release | : 2020-07-31 |
Genre | : Law |
ISBN | : 1788114264 |
This comprehensive yet accessible Research Handbook offers an expert guide to the key concepts, principles and debates in the modern law of unjust enrichment and restitution.
Author | : Graham Virgo |
Publisher | : Oxford University Press, USA |
Total Pages | : 815 |
Release | : 2015 |
Genre | : Law |
ISBN | : 0198726384 |
This title seeks to analyse the law of restitution, that body of law concerned with the award of remedies assessed by reference to a gain made by a defendant rather than a loss suffered by the claimant. It focuses on those claims founded on unjust enrichment, and the award of restitutionary remedies.
Author | : Andrew Dyson |
Publisher | : Bloomsbury Publishing |
Total Pages | : 371 |
Release | : 2016-01-14 |
Genre | : Law |
ISBN | : 1782256350 |
This book is the second in a series of essay collections on defences in private law. It addresses defences to liability arising in unjust enrichment. The essays are written from a range of perspectives and methodologies. Some are doctrinal, others are theoretical, and several offer comparative insights. The most important defence in this area of the law, change of position, is addressed in detail, but many other defences are treated too, as well as the interrelations between these defences within the law of unjust enrichment. The essays offer novel claims and ways of looking at problems in this challenging area of legal study.
Author | : Charles Mitchell |
Publisher | : A&C Black |
Total Pages | : 532 |
Release | : 2014-07-18 |
Genre | : Law |
ISBN | : 1782251375 |
The publication of the Restatement Third: Unjust Enrichment and Restitution by the American Law Institute in July 2010 was an event of major importance, not only for the development of the law of unjust enrichment in the US, but also for global scholarship relating to this area of private law. The Restatement First appeared in 1937, and the Restatement Second was abandoned; hence the Restatement Third is the most significant survey of the American law on this topic for over 70 years. Private law has been a comparatively neglected area of study in US law schools for several decades, and this is particularly true of the law of unjust enrichment. However, the appearance of the Restatement Third has prompted a renewal of interest in the subject among US scholars, and it is hoped that the present volume of essays will contribute to this revival, while reflecting on the lessons to be learned from the Restatement by other legal systems. Featuring the work of leading scholars from the UK, Germany, South Africa, Canada, Hong Kong and Australia, the essays undertake critical and comparative analysis of the Restatement, and offer fresh insights into the rules that it articulates.
Author | : Santiago Truccone |
Publisher | : Walter de Gruyter GmbH & Co KG |
Total Pages | : 271 |
Release | : 2024-10-21 |
Genre | : Philosophy |
ISBN | : 3111446379 |
Should historical injustices always be repaired? Upon scrutinising public institutions and present holdings, it becomes evident that many are partially the result of past injustices. Consequently, the imperative to rectify and repair historical injustices emerges. However, as circumstances change over time and these changes affect justice, the argument for repairing historical injustices becomes more intricate. The distributive and reparative aspects of justice may be in tension with each other. Possible tensions between these aspects of justice are assessed by discussing the thesis about the supersession of historical injustices. Different facets of the supersession thesis are evaluated in two contexts. The first context, explored in the initial part of the book, examines whether and, if so, under what conditions, post-colonial injustices against 19th-century Latin American indigenous peoples should be repaired. The second context, explored later in the book, assesses how climate burdens should be distributed globally and how to respond to potential injustices arising from departures from a fair climate transition towards net-zero CO2 emissions societies. The book demonstrates that repairing historical injustices is compatible with the imperatives of distributive justice.