Change of Position Defence

Zusatztext 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. Informationen zum Autor Elise Bant is Professor of Private Law and Commercial Regulation at The University of Western Australia and Professorial Fellow at Melbourne Law School, The University of Melbourne. Zusammenfassung This book defines and explains the operation of the defence of change of position in Anglo-Australian law. Inhaltsverzeichnis 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 ...

Product details

• Authors: Bant, Elise Bant, Professor Elise (The University of Western Australia) Bant
• Publisher: Bloomsbury
• Languages: English
• Product format: Hardback
• Released: 27.05.2009
• EAN: 9781841139654
• ISBN: 978-1-84113-965-4
• No. of pages: 286
• Series: Bloomsbury 3PL
• Subject: Social sciences, law, business > Law > International law, foreign law