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By Elise Bant
This e-book defines and explains the operation of the protection of swap of place in Anglo-Australian legislation. it's a commonly permitted view that the safeguard is a latest improvement, the 1st exhibit attractiveness of which might be traced in England to the seminal determination of the home of Lords in Lipkin Gorman (a company) v Karpnale Ltd. This paintings takes a distinct stance, arguing that the trendy case legislations is healthier understood via an exam of its old antecedents, putting the safeguard inside of its broader historic context and exhibiting how its disputed beneficial properties can be resolved. half one of many publication considers different, well-established defenses, laying off mild at the swap of place safeguard and laying the principles for the exam of the safeguard in a way in line with the legislations as an entire, that is the duty of half of the ebook. partly , the positive factors of the safety are pointed out, tested, and clarified through connection with the swap of place security professionals, issues of coverage and precept and the teachings derived from the doctrines and defenses that have been the topic of half One.
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Additional info for The Change of Position Defence
Chapter five identifies the primary elements of the change of position defence. It demonstrates that, in order for the defence to apply, the defendant’s change of position must be irreversible and (anticipatory changes of position aside) must have been caused by his receipt. The analysis then explains that the resolution of the causal question depends on the nature of the relevant change of position, in particular, whether it involves a spontaneous change in the received benefit or is a change that is brought about by the defendant.
2 eg the threat of unbridled judicial discretion expressed in Baylis v Bishop of London  1 Ch 127 (CA) 140 (Hamilton LJ), noted below, at 3. 1 Introduction and Overview Although this structure is theoretically necessary, practitioners and students coming to this area for the first time and wishing to take a shortcut, may find it easier, after reading this chapter, to commence at part two, where the features of the defence are identified, examined and clarified. Part two defines the elements of, bars to, ambit of operation and rationale of the defence by reference to the change of position defence authorities, considerations of policy and principle and by drawing on those lessons derived from the doctrines and defences which were the subject of part one.
This section will explain the methodology adopted to resolve those issues and provide an overview of the structure of the book. In seeking to define the change of position defence, the book will focus chiefly on English and Australian authority, although it also addresses where relevant Canadian, New Zealand and German law, in particular. There are two reasons for what might be regarded as the preferential treatment of Australian authorities. The first is that much of the most detailed primary and secondary material relevant to the change of position defence emanates from Australia and a great deal can be learnt from consistently comparing and contrasting the responses of the two jurisdictions.
The Change of Position Defence by Elise Bant