The Change of Position Defence in Restitution

JONATHAN DAWE

ABSTRACT

Although almost all common law jurisdictions now allow claims in restitution (or "unjust enrichment") to be resisted by a "change of position" defence, considerable disagreement exists with respect to the defence's conceptual basis. As long as the principle underlying the defence remains unclear, the law will be uncertain. In order to determine who can invoke the defence, and in what situations, it is necessary to have an understanding of why the defence exists and what it is supposed to accomplish. In this paper, the author considers the two leading understandings of the defence: the idea that the defence is based on considerations of equity and fairness between the parties, and the alternative view that the defence is rooted in the nature of the defendant's enrichment. The author argues that while neither explanation is completely free of problems, the enrichment-based understanding provides a more coherent and logical basis for the change of position defence.

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Citation: (1994) 52(2) U.T. Fac. L. Rev. 275.
Copyright © 1994. University of Toronto Faculty of Law Review.
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