Restitution Discussion Group Archives
| Sender: |
Andrew Tettenborn |
| Date: |
Mon, 26 Mar 2001 13:38:12 +0100 |
| Re: |
Change of position |
Jason Neyers suggests that it may be wrong
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. Also, that one might instead say that
a person is enriched if, and only if, the
transferred value is still retained As I understand the rules on pleading actions in unjust
enrichment, it is enough for a claimant to show that the defendant was
enriched by receipt of a benefit at the claimant's expense, and there
is no need for the claimant to show that the defendant is still enriched
at the time of his action, although it may be to his advantage to do
so if the value surviving in the defendant's hands is greater than the
value received and he wishes to claim the larger sum (cf Jones v Jones).
There's a further difficulty with saying that you aren't enriched in so
far as you haven't still got whatever it was enriched you. What do you do
about the person who has changed his position in bad faith, and how do you
differentiate him from the good faith big spender? To say the former is
enriched but the latter isn't lands you in the realm of pure fiction. To
say that neither is enriched but the bad faith position-changer is treated
as if he were is not much more satisfactory. The only logical way to look
at it is the old-fashioned one: both are enriched, but there's a very good
reason not to make the good faith position-changer cough up.
AMT
Andrew Tettenborn MA LLB Tel: 01392-263189 / +44-392-263189 (international) Snailmail: School of Law, [ Homepage: http://www.ex.ac.uk/law/
].
Bracton Professor of Law
Fax: 01392-263196 / +44-392-263196 (international)
Personal Fax: 0870-0889339 / +44-870-0889339 (international)
University of Exeter,
Amory Building,
Rennes Drive,
Exeter EX4 4RJ
England
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