The change of position defence was not specifically recognised as a defence to claims in unjust enrichment in English Law. It has been formally recognised as a defence since the significant decision of the House of Lords in Lipkin Gorman v Karpnale LTD . In this case, the plaintiff, Lipkin Gorman (a firm of solicitors) sought to recover money which had been stolen from them by a partner, and then gambled away with the defendant. The defendant, having already purchased their gambling chips, argued that these being gambling debts were worthless and that no consideration had been given. In his leading speech, Lord Goff of Chieveley, stated unjust enrichment in the following terms: “The recovery of money in restitution is not, as a general rule, a matter of discretion for the court. A claim to recover money at common law is made as a matter of right; and even though the underlying principle of recovery is the principle of unjust enrichment, nevertheless, where recovery is denied, it is denied on the basis of legal principle.” In the case of Scottish Equitable plc v Derby , Mr Derby received an overpayment through the carelessness of his life assurance company and spent some of it on small improvements to his daily lifestyle. Despite the fact that Mr Derby had acted honestly and that Scottish Equitable was at fault, the defence was denied. Both cases developed principles on the change of position defence that were used to obtain a conclusion to the case. Although principles were introduced, uncertainty remains in defining the figure of each of them. Firstly, the burden of proof for each element of the defence is on the defendant. The defence will therefore fail in a situation where the defendant does not give a full accou... ... middle of paper ... ...s made for commercial reasons. In addition, spending a payment that has been made in advance in relation to a contract that is later frustrated will enliven the defence. However, if the defendant spends the amount of money mistakenly received to him or her by the claimant for some other purpose such as holiday will not enliven the defence. The effectiveness of the change of position defence in protecting a defendant from hardship can be observed through the modern case law and through the principles derived from the various cases. Both precedent and principles suggest that a defendant who knows that he or she is not entitled to his or her receipt should be precluded from relying on the change of position defence if he or she fails to take the care a reasonable man would in the circumstances, in particular, knowing that the benefit must be accounted for another.
I fully agree! As Richard Laycock writes in his article “Restoring Restitution to the Canon” which appeared in the Michigan Law Review states, “This new Restatement should be on every litigator 's bookshelf, and a broad set of transactional lawyers and legal academics would also do well to become familiar with it.” (2012)
Economic Injustice in America "Class is for European democracies or something else--it isn't for the United States of America. We are not going to be divided by class." -George Bush, the forty-first President of the United States (Kalra 1) The United States of America was founded on the basis of a "classless society of equals," committed to eliminating the past injustices imposed on them by Great Britain.
Social inequality has various definitions; it depends on who you ask. It is difficult to formulate a specific definition for social inequality because it is such a broad topic. The textbook definition of the term “inequality” is “the condition of being unequal; lack of equality; disparity” (Dictionary.com, 2015). But, social inequality in the United States specifically focuses on social disparities in America. However, my definition of social inequality in the United States is this: American citizens that don’t receive equal opportunities because they don’t have access to equal resources.
Given that it lies within the domain of equity, the case law indicates a great flexibility in its application, both in the substantive requirements of proof demanded by the courts and in the manner in which the courts will satisfy the equity. It is the first of these aspects of the doctrine that I will examine in this essay. I will look at the shift in the evidentiary requirements and what a representation (or an assurance of rights), a reliance (a change of position on the basis of that assurance) and a detriment (or unconscionable disadvantage) - the three pre-requisites for a successful claim - have come to mean with regard to case law and in particular the judgement of Judge Robert Walker in the Court of Appeal in Gillett v. Holt[1], in which the plaintiff had been given repeated assurances over many decades that he would inherit the defendant's estate, and remained in service to him at least p... ... middle of paper ... ... operty, 16th Ed, Butterworths K. Gray & S.F Gray - Land Law, 2nd Ed, Butterworths Professor Cedric D Bell - Land: The Law of Real Property, 3rd Ed, Old
The distinction between an unfair prejudice petition and a statutory derivative action has always been in the nature of remedy sought by the claimant. This is arguably the point where a distinction is drawn as to whether a statutory derivative action or an unfair prejudice petition should be pursued. A d...
In order to critically assess the approach of the courts in allowing damages for pure economic loss in cases of negligence. One must first outline what pure economic loss is and what it consists off. Pure economic loss can be defined as financial loss or damage to one party caused by another party due to their negligence however the negligent act that is carried out is ‘purely’ economic and has no relation to any physical damage caused to any person or property. Numerous cases illustrate pure economic loss and losses that are deemed to be ‘purely economic’ are demonstrated under the Accidents Act 1976.
part of the Doctrine Hedley Byrne and Co. Ltd V Heller and. Partners Ltd (1964), Rondel V Worsley (1969).
"The applicability of doctrine of proportionality even in administrative law sphere is yet a debatable issue."
The Act however did not sort all the problems either because, as Goff J put it in BP v. Hunt (1979) ( in relation to s.1(3)), its focus was upon the prevention of unjust enrichment and consequently it does not address itself to the recovery of reliance losses which don't result in a benefit to the other party, nor does it seek to apportion the losses between the parties.
In this essay, I will describe the elements of a criminal act, address the law of factual impossibility, the law of legal impossibility, and distinguish whether the alleged crime in the scenario is a complete but imperfect attempt or an incomplete attempt. I will address the ethical or moralistic concerns associated with allowing a criminal defendant to avoid criminal responsibility by successfully asserting a legal defense such as impossibility. The court was clearly wrong to dismiss the charge against Jack of attempted murder of Bert.
A defence in criminal law arises when conditions exist to negate specific elements of the crime: the actus reus when actions are involuntary, the mens rea when the defendant is unaware of the significance of their conduct, or both. These defences will mitigate or eliminate liability from a criminal offence. Insanity, automatism and diminished responsibility are examples of said defences. They each share characteristics but can be distinguished in their scope and application.
Income inequality continues to increase in today’s world, especially in the United States. Income inequality means the unequal distribution between individuals’ assets, wealth, or income. In the Twilight of the Elites, Christopher Hayes, a liberal journalist, states the inequality gap between the rich and the poor are increasing widening, and there need to have things done - tax the rich, provide better education - in order to shortening the inequality gap. America is a meritocratic country, which means that everybody has equal opportunity to be successful regardless of their class privileges or wealth. However, equality of opportunity does not equal equality of outcomes. People are having more opportunities to find a better job, but their incomes are a lot less compared to the top ten percent rich people. In this way, the poor people will never climb up the ladder to high status and become millionaires. Therefore, the government needs to increase all the tax rates on rich people in order to reduce income inequality.
The courts of England and Wales acknowledge that the above must be something of value, in order to amount to consideration. A valuable consideration in the perspective of the English La...
Many people don’t want to believe that we are living in a social injustice environment in this country. They choose to ignore the fact that rich are getting richer while the poor are just getting poorer. The rich public schools are giving their students the necessary opportunities to live a decent life while the poor students are left out and have to struggle for those opportunities. The social injustice is visible to every citizen in this country and it continuing to grown; however, there is a few solutions to minimize and possibly to solve the social injustice problem we have in American. One of them is give equal education in all public schools so everyone can have an equal opportunities in getting the jobs and careers they choose. Second
To understand the concept of social inequality, one needs to explore how it occurs or functions. According to Charles Walker, “Social inequality refers to the ways in which socially-defined categories of persons are differentially positioned with regard to access to a variety of social ‘goods”. Social inequality, therefore, is an umbrella term. It is expansive in nature, as social inequality encompasses a variety of different inequalities; for example, gender, race, and structural inequality are all social inequalities, but they can differ widely in manifestation. The definition of social inequality can also change based on the perception of the individual who is defining the term.