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Change of Position
Author(s) -
Key Paul
Publication year - 1995
Publication title -
the modern law review
Language(s) - English
Resource type - Journals
SCImago Journal Rank - 0.37
H-Index - 22
eISSN - 1468-2230
pISSN - 0026-7961
DOI - 10.1111/j.1468-2230.1995.tb02027.x
Subject(s) - key (lock) , position (finance) , citation , library science , computer science , business , computer security , finance
Proof of a defendant's unjust enrichment at the expense of the plaintiff constitutes a prima facie obligation to make restitution. Nevertheless, an action for restitution will be denied if the defendant can establish a positive defence. Change of position is the most recent addition to the set of defences available to the defendant. It presents great potential for the development and rationalisation of the law of restitution. However, courts recognising change of position have, in general, confined their analyses of the defence to the specific facts presented for their consideration and have refused to enter into a wider examination of its scope. Thus, a cloud of uncertainty surrounds the availability of change of position. Some jurists have taken noteworthy steps towards clarification of the defence; however, many issues are yet to be addressed and there is little consensus as to the justifiable limits of change of position. This article is an attempt to redress this state of affairs.