Upon fulfillment of the four criteria, namely that the defendant has been unjustly enriched at the claimant’s expense and there are no defenses available for the defendant, a claimant may qualify for restitution of unjust enrichment as established in Banque Financiere de la Cite v Parc (Battersea) Ltd. Change of position is one of the possible defences which may be used in occasions where it would be excessive to allow a claimant to claim restitution at the defendant’s expense. This essay will evaluate the defence of change of position and reinforce the fact that it is largely ineffective in protecting a defendant from hardship. The purpose of restitution is to prevent unjust enrichment, and to deny the defence of change of position will contradict this fundamental principle and function. The purpose of change of position is to balance out the hardships between the claimant and defendant. For instance, in the landmark case of Lipkin Gorman v Karpnale, it states that, "If the plaintiff pays money to the defendant under a mistake of fact, and the defendant then, acting in good faith, pays the money or part of it to charity, it is unjust to require the defendant to make restitution to the extent that he has so changed his position.’ In such cases, Lord Goff stated change of position is a good defence when performed in good faith. This solidified the status of change of position as an accepted choice of defence. Change of position is not up to the court’s discretion and there are principles guiding them in their judgments. However, in Lipkin Gorman, Lord Goff stated that the development of change of position should be dealt with on a case to case basis , leading to much uncertainty in the Law of Restitution today. A failure in cr... ... middle of paper ... ...nts to list out every item bought using the money. It was stated in the Canadian case of RBC Dominion Securities Inc v Dawson that detailed evidence of spending was not required by the courts in order to prove extraordinary expenditure. The rationale behind this is that a recipient should be allowed to spend their own money in whichever way they choose to do so, without fears of suddenly having to repay back the benefit gained, provided it was done in good faith. Despite the relaxed approach taken by the courts concerning extraordinary expenses, it is still unclear whether it has to be something out of the ordinary like a special holiday package taken due to the acquired sum, or buying slightly more expensive food from the grocers. Hence change of position is ineffective due to the lack of clarity in each of the individual principles in application of the defence.
Question Presented: Petitioner Giridar C. Sekhar was convicted of extortion under the federal law for potentially exposing an extramarital affair unless the general counsel for the state comptroller recommended that the state pension fund invest in a fund managed by Sekhar’s company. The meaning of the word “property” would be determined by the courts under the federal extortion law. They would also decide whether the General Counsel had recommended the “property” and if it could be subject to extortion by the federal law. The petitioner had argued for a narrow of the meaning or definition of the word “Property”. He wished that it were brought to the meaning of something that is of value and that is transferable.
I fully agree! As Richard Laycock writes in his article “Restoring Restitution to the Canon” which appeared in the Michigan Law Review states, “This new Restatement should be on every litigator 's bookshelf, and a broad set of transactional lawyers and legal academics would also do well to become familiar with it.” (2012)
The decision in Equuscorp is significant, as it has made clear several principles that were once ambiguous under Australian law. It ratifies that restitutionary remedies are unavailable for a claim for money had and received where recovery would reduce coherence in the law. Furthermore, Equuscorp has confirmed that a bare cause of action can be assigned where the assignee has a genuine commercial interest in its enforcement.
It is essential to locate the claim for reparations within a framework of law and justice. The following four propositions are truths that attempt to conceptualize a legal framework for the formulation and prosecution of the claim for reparations.
It has been stated that “a person commits an offence if he enters into or becomes concerned in an arrangement which he knows or suspects facilitates (by whatever means) the acquisition, retention, use or control of criminal property by or on behalf of another person.” In Bowman v Fels, the courts concluded that this section of the act was not interpreted in a way by which it intended to cover or affect the ordinary conduct of litigation by legal professionals, which was the issue that arose here.
In the article, “The Case of Reparations”, Ta-Nehisi Coates discusses redlining as a form of discriminatory housing practices from contract buyers to African Americans. Where black people are referred as a contagion, which spreads throughout neighborhoods with no cure to contain it. Society cannot look at these human beings, as a form of savages where they do not get the same rights as any other person would, specifically, financial status and buying property. Clyde Ross is an example of a survivor that shows that we can overcome these injustice laws, through a lot of effort, and therefore fulfilling our own goals to own property. Redlining should of not been practice to the extend where families are at risk of losing their homes and should
Having evaluated the current state of English contract law, mainly made up of piecemeal solutions, it can be seen that despite being satisfactory and doing its job, there still remain gaps within the law of contract where unfairness is not dealt with. Moreover, due to the ad hoc nature of those piecemeal solutions, the latter have often produced inconsistent justice and have manifested cases of unfairness. Hence, “a relatively small number of respected Justices have endeavored to draw attention to the fact that the application of a general principle might be useful and even necessary in English law.”
Restorative and retribution justice is not without criticism. A number of concerns on the absence of bureaucratic and constitutional or due process rights of criminals, questions regarding the authority to decide the course of a case. Consequently, the concern with the guarantee of protection and the possibility of inequities when civic duties are left to interested parties to govern. The lack of counsel’s role for the defense or public responses is often from an opponent’s viewpoint and not seen as traditional sanctions, makes retribution and restorative very ineffective to address justices.
Lord Selborne in the case of Wilson v Northampton and Banbury Junction Rly Co[ (1874) 9 Ch App 279.] had outlined the purpose of specific performance. His Lordship stated that specific performance will only be granted when it can by that means do more perfect and complete justice. The purpose of granting specific performance is to ensure that justice can be uphold as perfect as it could be. However, the specific performance will only be granted when there is inadequate and insufficient remedy of damages to any case of breach of
“Restorative justice is an approach to crime and other wrongdoings that focuses on repairing harm and encouraging responsibility and involvement of the parties impacted by the wrong.” This quote comes from a leading restorative justice scholar named Howard Zehr. The process of restorative justice necessitates a shift in responsibility for addressing crime. In a restorative justice process, the citizens who have been affected by a crime must take an active role in addressing that crime. Although law professionals may have secondary roles in facilitating the restorative justice process, it is the citizens who must take up the majority of the responsibility in healing the pains caused by crime. Restorative justice is a very broad subject and has many other topics inside of it. The main goal of the restorative justice system is to focus on the needs of the victims, the offenders, and the community, and focus
Restorative justice is the idea that harm caused by a crime can be repaired (Wallis, 2007) and that the victim and community can be restored to how it was previously, rather than resorting to punishing the offender (Liebmann, 2007). At the moment, the criminal justice system is based on retributive justice over restorative justice; this is where a lawbreaker receives punishment in proportion to the crime inflicted (Milovanovic, 2007) and is given back what they have given the victim: harm (Koneke, 2011). Restorative justice has been seen as a potentially transformative social practice that could see the end for the need for harsh criminal punishments and incarceration (Menkel-Meadow, 2007). This could change public debate about crime and justice completely because the idea behind crime and justice is beginning to move further away from the traditional, retributive system that we are so accustomed too, and towards a more liberal, restorative justice system that focuses on repairing the harm done by the offender.
I will like to apply my research to two aspects of restorative justice : offender suitability and offender-community participation in restorative justice programs. My proposed research seeks to explore the factors that determine an offender’s suitability for participation in restorative justice process, how important is the gender of the offender or nature of offence he/she committed in this regard? The study intends to examine the effects of these factors on the community’s participation in the restorative justice process, it also attempts to assess if participation in restorative justice programs may on enhance the trust of the community in the criminal justice system by reducing their
The distinction between an unfair prejudice petition and a statutory derivative action has always been in the nature of remedy sought by the claimant. This is arguably the point where a distinction is drawn as to whether a statutory derivative action or an unfair prejudice petition should be pursued. A d...
Restorative Justice Most contemporary justice systems focus on a violation of the law(s), a offender, and a punishment for which to dole out. However, a concept called “restorative justice” is an approach
The courts of England and Wales acknowledge that the above must be something of value, in order to amount to consideration. A valuable consideration in the perspective of the English La...