The Change of Position Defence

Professor Elise Bant (The University of Western Australia)

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English

Hart Publishing
27 May 2009

Restitution; Torts Law

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""'.

By: Professor Elise Bant (The University of Western Australia)
Imprint: Hart Publishing
Country of Publication: United Kingdom
Dimensions: Height: 234mm, Width: 156mm, Spine: 22mm
Weight: 604g
ISBN: 9781841139654
ISBN 10: 1841139653
Pages: 286
Publication Date: 27 May 2009
Audience: Professional and scholarly , Undergraduate
Format: Hardback
Publisher's Status: Active

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.

Reviews for The Change of Position Defence

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