Restitution Discussion Group Archives
| Sender: |
Jason Neyers |
| Date: |
Mon, 4 Mar 2002 12:38:46 -0500 |
| Re: |
COP & Estoppel |
Dear Benedict,
Your argument brings out an important issue. What is
the true basis of the change of position defence? In the arguments so
far we have two competing views: (1) COP is based upon detrimental reliance
on an implicit representation (i.e. COP and estoppel are the same); (2)
COP is based on a claim by the payee that the value no longer subsists
in their hands/patrimony (COP is different from and unrelated to estoppel).
If the basis of COP is correctly seen as (2) (as is seemingly
suggested in NatWest v Somer
by Potter LJ) then the reason why there is no recovery in situations of
detrimental reliance (in the sense of giving up future opportunities)
has little to do with UE and COP. Instead the result is explainable on
the grounds that the damages for the civil wrong of foreseeably inducing
detrimental reliance (i.e. estoppel) off-set the amount payable on the
basis of the UE.
Just a thought.
--
Jason Neyers
Assistant Professor of Law
Faculty of Law
University of Western Ontario
N6A 3K7
(519) 661-2111 x. 88435
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