Full Text Available
Note: Clicking the button above will open the full text document at the original institutional repository in a new window.
The change of position defence in comparative perspective
Includes abstract.
Saved in:
| Main Author: | |
|---|---|
| Other Authors: | |
| Format: | Thesis |
| Language: | English |
| Published: |
Department of Private Law
2015
|
| Subjects: | |
| Tags: |
No Tags, Be the first to tag this record!
|
| _version_ | 1867613226424860672 |
|---|---|
| access_status_str | Open Access |
| author | Jorge, Aimite |
| author2 | Visser, Daniel P |
| author_browse | Jorge, Aimite Visser, Daniel P |
| author_facet | Visser, Daniel P Jorge, Aimite |
| author_sort | Jorge, Aimite |
| collection | Thesis |
| description | Includes abstract. |
| format | Thesis |
| id | oai:open.uct.ac.za:11427/12521 |
| institution | University of Cape Town (South Africa) |
| language | eng |
| last_indexed | 2026-06-10T12:32:46.693Z |
| license_str | Not specified — see source repository |
| provenance_str_mv | Harvested via OAI-PMH from UCTD — University of Cape Town Open Access Repository |
| publishDate | 2015 |
| publishDateRange | 2015 |
| publishDateSort | 2015 |
| publisher | Department of Private Law |
| publisherStr | Department of Private Law |
| record_format | dspace |
| source_str | UCTD — University of Cape Town Open Access Repository |
| spelling | oai:open.uct.ac.za:11427/12521 The change of position defence in comparative perspective Jorge, Aimite Visser, Daniel P Private Law Includes abstract. 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. 2015-02-17T13:05:44Z 2015-02-17T13:05:44Z 2009 Doctoral Thesis Doctoral PhD http://hdl.handle.net/11427/12521 eng application/pdf Department of Private Law Faculty of Law University of Cape Town |
| spellingShingle | Private Law Jorge, Aimite The change of position defence in comparative perspective |
| thesis_degree_str | Doctoral |
| title | The change of position defence in comparative perspective |
| title_full | The change of position defence in comparative perspective |
| title_fullStr | The change of position defence in comparative perspective |
| title_full_unstemmed | The change of position defence in comparative perspective |
| title_short | The change of position defence in comparative perspective |
| title_sort | change of position defence in comparative perspective |
| topic | Private Law |
| url | http://hdl.handle.net/11427/12521 |
| work_keys_str_mv | AT jorgeaimite thechangeofpositiondefenceincomparativeperspective AT jorgeaimite changeofpositiondefenceincomparativeperspective |