The change of position defence in comparative perspective

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dc.contributor.advisorVisser, Daniel Pen_ZA
dc.contributor.authorJorge, Aimiteen_ZA
dc.date.accessioned2015-02-17T13:05:44Z
dc.date.available2015-02-17T13:05:44Z
dc.date.issued2009en_ZA
dc.descriptionIncludes abstract.en_ZA
dc.description.abstractThis work examines the change-of-position (loss of enrichment) defence comparatively in five jurisdictions, namely South Africa, Brazil, England Canada and USA. It advances a three-part argument which contends, first, that when a legal system opts for a general enrichment principle, it must equally limit it with defences. Secondly, that once the limiting mechanisms are chosen, the system must demarcate their contours and establish the inevitable exceptions. Thirdly, that legal system, as a consequence, must also decide whether to require a symmetric ‘gain-loss’ situation, i.e., whether to insist that the measure of recovery be limited by the plaintiff’s loss. If it chooses a symmetry ‘gainloss’, that system might face difficulties avoiding a passing on defence, as the reverse face of change-of-position on the plaintiff’s side, thereby potentially undermining indirectly the principle of legality. If it departs from that symmetry, the passing on defence may ‘normatively’ be ignored, unless for policy reasons it opts to have it. The study concludes that South Africa is bound to adopt explicitly a general principle of unjustified enrichment with change of position as the general defence applicable to all unjustified enrichment claims, save to claims arising from failed bilateral agreements. The study recommends that South Africa may give limited recognition to the passing on defence in its private law of unjustified enrichment where policy considerations do not militate against its application.en_ZA
dc.identifier.apacitationJorge, A. (2009). <i>The change of position defence in comparative perspective</i>. (Thesis). University of Cape Town ,Faculty of Law ,Department of Private Law. Retrieved from http://hdl.handle.net/11427/12521en_ZA
dc.identifier.chicagocitationJorge, Aimite. <i>"The change of position defence in comparative perspective."</i> Thesis., University of Cape Town ,Faculty of Law ,Department of Private Law, 2009. http://hdl.handle.net/11427/12521en_ZA
dc.identifier.citationJorge, A. 2009. The change of position defence in comparative perspective. University of Cape Town.en_ZA
dc.identifier.ris TY - Thesis / Dissertation AU - Jorge, Aimite AB - This work examines the change-of-position (loss of enrichment) defence comparatively in five jurisdictions, namely South Africa, Brazil, England Canada and USA. It advances a three-part argument which contends, first, that when a legal system opts for a general enrichment principle, it must equally limit it with defences. Secondly, that once the limiting mechanisms are chosen, the system must demarcate their contours and establish the inevitable exceptions. Thirdly, that legal system, as a consequence, must also decide whether to require a symmetric ‘gain-loss’ situation, i.e., whether to insist that the measure of recovery be limited by the plaintiff’s loss. If it chooses a symmetry ‘gainloss’, that system might face difficulties avoiding a passing on defence, as the reverse face of change-of-position on the plaintiff’s side, thereby potentially undermining indirectly the principle of legality. If it departs from that symmetry, the passing on defence may ‘normatively’ be ignored, unless for policy reasons it opts to have it. The study concludes that South Africa is bound to adopt explicitly a general principle of unjustified enrichment with change of position as the general defence applicable to all unjustified enrichment claims, save to claims arising from failed bilateral agreements. The study recommends that South Africa may give limited recognition to the passing on defence in its private law of unjustified enrichment where policy considerations do not militate against its application. DA - 2009 DB - OpenUCT DP - University of Cape Town LK - https://open.uct.ac.za PB - University of Cape Town PY - 2009 T1 - The change of position defence in comparative perspective TI - The change of position defence in comparative perspective UR - http://hdl.handle.net/11427/12521 ER - en_ZA
dc.identifier.urihttp://hdl.handle.net/11427/12521
dc.identifier.vancouvercitationJorge A. The change of position defence in comparative perspective. [Thesis]. University of Cape Town ,Faculty of Law ,Department of Private Law, 2009 [cited yyyy month dd]. Available from: http://hdl.handle.net/11427/12521en_ZA
dc.language.isoengen_ZA
dc.publisher.departmentDepartment of Private Lawen_ZA
dc.publisher.facultyFaculty of Lawen_ZA
dc.publisher.institutionUniversity of Cape Town
dc.subject.otherPrivate Lawen_ZA
dc.titleThe change of position defence in comparative perspectiveen_ZA
dc.typeDoctoral Thesis
dc.type.qualificationlevelDoctoral
dc.type.qualificationnamePhDen_ZA
uct.type.filetypeText
uct.type.filetypeImage
uct.type.publicationResearchen_ZA
uct.type.resourceThesisen_ZA
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