Outcome Responsibility and Autonomy: Rationalising the Change of Position Defence in Mistaken Payment Claims

Three decades on from its decisive advent in England and Australia, the change of position defence has become part of the fabric of the law of restitution. Yet its rationale — long neglected but increasingly scrutinised — remains a matter of debate. This article seeks to advance the debate by analysing possible rationales for the defence as it applies to the paradigm case of restitution, mistaken payments. After exposing difficulties with many of the candidates that have hitherto attracted support, this article advances two rationales better suited to facilitate principled development of the defence: outcome responsibility, and reciprocal recognition of decisional autonomy. Both rationales put the defence on firm normative foundations, align with its present contours and suggest areas for further development.

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Publication Details

Journal
˜The œSydney law review.
Published
2025-09-30
DOI
https://doi.org/10.30722/slr.20123
Primary Topic
Legal Systems and Judicial Processes
Type
article
Field-Weighted Citation Impact
0.00
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article

Outcome Responsibility and Autonomy: Rationalising the Change of Position Defence in Mistaken Payment Claims

Charlie Ward
˜The œSydney law review.
Legal Systems and Judicial Processes
article

Outcome Responsibility and Autonomy: Rationalising the Change of Position Defence in Mistaken Payment Claims

Charlie Ward
article en

Abstract

Three decades on from its decisive advent in England and Australia, the change of position defence has become part of the fabric of the law of restitution. Yet its rationale — long neglected but increasingly scrutinised — remains a matter of debate. This article seeks to advance the debate by analysing possible rationales for the defence as it applies to the paradigm case of restitution, mistaken payments. After exposing difficulties with many of the candidates that have hitherto attracted support, this article advances two rationales better suited to facilitate principled development of the defence: outcome responsibility, and reciprocal recognition of decisional autonomy. Both rationales put the defence on firm normative foundations, align with its present contours and suggest areas for further development.

˜The œSydney law review.Vol. 47
The University of Sydney (AU)
Openalex Percentile: Top 69%
Legal Systems and Judicial Processes
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Outcome Responsibility and Autonomy: Rationalising the Change of Position Defence in Mistaken Payment Claims — Charlie Ward · ˜The œSydney law review. (2025) | TGRS Research Map | TGRS