Elise Bant, THE CHANGE OF POSITION DEFENCE Oxford: Hart Publishing (www.hartpub.co.uk), 2009. xxviii + 264 pp. ISBN 9781841139654. £60.
| Pages | 532-535 |
| Published date | 01 September 2010 |
| Author | Phillip Hellwege |
| Date | 01 September 2010 |
| DOI | 10.3366/elr.2010.0317 |
Dr Bant's
In a concise introduction (1–21) Bant defines the objective of her book as being to explore the functioning of the defence in Anglo-Australian law. Of course, other commentators have approached the same task before her in numerous articles. Yet, they have done so, as Bant observes, by focusing on the post-1991 case law. Bant takes a different approach, observing that to “start the story in 1991 is to miss important insights that can help to inform the modern law. The law must develop rationally, in a manner consistent with the existing law and its underlying policy concerns as a whole. Placing the change of position defence within its broader historical and legal context helps us to see how its disputed features might be resolved”. A German lawyer would call this approach dogmatic in the sense that it is based on the assumption that a legal system is coherent, that on the basis of this assumption the interrelation of the different institutions of a given legal system has to be worked out, and that thereby it is possible to explain the operation of each institution. A German lawyer would, thus, regard Bant's approach as the most natural way forward to define the defence of change of position and to resolve questions of doubt in its application. Scots lawyers would, most probably, adopt a similar approach. In contrast, in the Common Law world such a method is likely to provoke opposition. In addition, Bant also wants to adopt a pure “bottom-up” approach: she starts with the different identified features of the defence and only in the end defines its rationale. This is traditional Common Law methodology.
Bant then turns to the core example of the defence: a claimant makes a payment to a defendant; it was caused by the claimant's mistake; the mistake had not been induced by the defendant; the claimant asks for repayment; yet, the defendant has used the money to purchase goods which he now has consumed; in doing so he acted in reliance on the security of his receipt and he acted in good faith. Bant uses this example to contrast it with cases in which the application of the defence is controversial. She identifies four questions of doubt: the first is whether...
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