Restitution Discussion Group Archives
| Sender: |
Robert Stevens |
| Date: |
Fri, 23 Mar 2001 09:02:20 |
| Re: |
Estoppel/Change of Position |
This might sound very abstract. The following factual
scenario might help illustrate the point: 1. D has originally set aside £50 from his wealth
for the purchase of a limited edition print which costs £50. 2. P mistakenly pays £100 to D, representing to D
that he is entitled to keep the full amount. 3. Thinking that he now has £150 in total, D decides
to purchase a more expensive print which costs £120, also in limited
edition. He orders the print accordingly and pays a non-refundable deposit
of £80. 4. P discovers the mistake, and demands the return
of £20, whilst accepting a change of position for the £80 that has been
paid for the deposit. 5. However, this would still leave D with a detriment,
namely the forgone opportunity to purchase the print which costs £50.
6. If D is allowed the defence of estoppel, he could
at least keep £20, which to some extent makes up for the detriment.
Whether D has detrimentally changed his position in reliance upon the representation
so as to be able to rely upon estoppel seems to turn upon the scope of the
defence of change of position. If the lost opportunity to purchase the print
can be valued there seems to be no reason why it cannot be said that D has,
to that extent, changed his position. Indeed it is to be hoped that that
is the law otherwise D would have an inadequate defence if there was no
representation in the example you give. Whether that is the law is almost
incapable of being answered as the defence of change of position has so
rarely been successfully invoked.
Robert Stevens
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