Restitution Discussion Group Archives
| Sender: |
Lusina Ho |
| Date: |
Fri, 23 Mar 2001 12:31:13 +0800 |
| Re: |
Estoppel/Change of Position |
Dear All,
The argument referred to by Robert Walker LJ in Derby
(CA) is attractive indeed.
However, it assumes that the money spent as a result
of the representation would not lead to a detriment if the surviving amount
is taken back. This works in the illustration given, where £250 was spent
on a party (an enjoyed benefit) and there would be no detriment if £750
was taken back. However, once one moves beyond this scenario, the argument
might not work. For instance, what if as a result of the receipt and representation,
money is spent to forgo a beneficial opportunity A in pursuit of a future
benefit B, such that B would not be realised if the surviving amount is
taken back, and further more leaving the recipient in a position whereby
he would not be able to pursue A.
This might sound very abstract. The following factual
scenario might help illustrate the point:
1. D has originally set aside £50 from his wealth for
the purchase of a limited edition print which costs £50.
2. P mistakenly pays £100 to D, representing to D that
he is entitled to keep the full amount.
3. Thinking that he now has £150 in total, D decides
to purchase a more expensive print which costs £120, also in limited edition.
He orders the print accordingly and pays a non-refundable deposit of £80.
4. P discovers the mistake, and demands the return of
£20, whilst accepting a change of position for the £80 that has been paid
for the deposit.
5. However, this would still leave D with a detriment,
namely the forgone opportunity to purchase the print which costs £50.
6. If D is allowed the defence of estoppel, he could
at least keep £20, which to some extent makes up for the detriment.
Hope this makes sense. Eugene Fung and I have alluded
to this possibility in (2001) 117 LQR 14 at 17, but unfortunately have
not elaborated on it. We hope to explore the arguments further in our
next paper. In the meantime, your comments would be greatly appreciated.
Cheers,
Lusina Ho
Faculty of Law
University of Hong Kong
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