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It is with great interest that I have been reading the discussion on the interrelationship between change of position and the defence of estoppel. Of particular interest was the argument made by Prof. Burrows relating the defendant's (possible) ability to say that they are invoking the estoppel defence first, instead of the change of position defence.

Perhaps the difficulty that is being engendered by this issue results from attempting to view change of position as a defence to an otherwise valid claim in unjust enrichment rather than as a constituent part of the cause of action itself. If one says that a person is enriched if, and only if, the transferred value is still retained, then perhaps a better view of the interrelationship between the two ideas can discovered.

If this view is correct, then estoppel could only (theoretically) operate after the cause of action had been made out and there would be no question of the plaintiff choosing estoppel first. Based on the arguments already made, if change of position must operate first, estoppel would seemingly have a very minor role (if any) to play.

Just a thought.

--
Jason Neyers
Assistant Professor of Law
Faculty of Law
University of Western Ontario
N6A 3K7
(519) 661-2111 x. 88435