Is the answer not that in question 2 Bob is not asserting a CoP defence against Anna because he did not expend money on the basis of her payment of Chris but Chris’ payment to them both. His defence would be (if we accept q1 as being correct) that Anna has overpaid Chris because the debt they both owed to him has been reduced by Bob’s original change of position, which Anna failed to assert as reduction or extinction of her (joint) liability.

I thought I had this easy for a moment because I’d just about concluded the point of contribution excludes change of position… but let’s imagine

Anna and Bob have a joint bank account. Later they decide they don’t like each other much after all and split up hence the litigation between them to come, but the joint bank account remains. Chris thinks (wrongly) he owes Bob £100. Chris transfers the money to the joint account. A&B are presumably jointly and severally liable in UE. Two scenarios

1. Anna takes £100 and goes for a night out with the girls. Can Bob claim change of position against Chris because of Anna’s action? I think yes and equally if Bob takes £100 and goes for a night out with the boys just before Chris asks him for the money back.
2. Bob takes £100 and goes for a night out with the boys. Anna pays Chris £100 to discharge her liability and claims contribution from Bob. Can Bob claim c of p against Anna? I’d think yes, but I can’t prove it, although if the answer to q1 is yes, the answer to q2 must also be yes (?)

Does anyone know of any cases on this?

Duncan

Professor Duncan Sheehan

School of Law

University of Leeds

Leeds

United Kingdom 

LS2 9JT

+44(0)113 3439936

http://works.bepress.com/duncan_sheehan

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