Also known as:change of position defense · change of position
Written by attorneys · grounded in primary & secondary sources — see below
A defense that reduces or eliminates a party's liability to make restitution or to enforce a contract modification when that party has reasonably and materially changed position in reliance on a benefit received or a promise made so that requiring restitution or enforcement would be inequitable.
Sources & Authorities
How it applies
Common Examples
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Additional Fee After Regulatory Investigation
Point Rights and Apex Attorneys orally agreed midway through a litigation engagement that Point Rights would handle an unanticipated federal investigation for an extra $150,000. Point Rights hired additional associates and declined other matters in reliance on the new fee. When Apex later refused to pay the extra amount, the changed position defense prevented Apex from reinstating the original terms because doing so would be unjust after Point Rights' material reliance.
Oral Modification of Written Engagement
Point Rights and Apex Attorneys orally modified their written engagement to add regulatory work and switch compliance manuals to digital delivery. Apex later claimed the modification was unenforceable under the Statute of Frauds. Because Point Rights had hired staff and Apex had restructured its team in reliance on the oral deal, the changed position defense allowed enforcement of the modification despite the missing writing.
Select any source to read its text and confirm it supports the definition.
Uniform Acts
Restatements
Hornbooks
Waiver of Printed Manuals Requirement
After an oral agreement to deliver compliance manuals digitally instead of in print, Apex demanded that Point Rights resume printing the manuals under the original contract. Point Rights had already adjusted its production processes and staffing in reliance on the digital arrangement. The changed position defense barred Apex from reinstating the original printed-manual obligation because doing so would be unjust after the material reliance.
Common questions
Frequently Asked
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What must a defendant prove to succeed on the changed position defense in a restitution claim?+
The defendant must show a reasonable and material change of position in reliance on the benefit received and that requiring restitution would be inequitable. The burden rests on the defendant. Conscious wrongdoers cannot invoke the defense.
Supporting sources
Does the changed position defense apply when a contract modification is challenged under the Statute of Frauds?+
Yes. When parties agree to modify an enforceable contract and one side materially changes position in reliance on the modification, reinstatement of the original terms is unjust. The defense therefore permits enforcement of the modification even without a writing that satisfies the Statute of Frauds.
Supporting sources
How does the changed position defense interact with promissory estoppel under Restatement § 90?+
The defense supplies an independent ground for enforcement when justice requires it because of material reliance on a promise. Courts examine the foreseeability and extent of the reliance to decide whether non-enforcement would produce inequity.
Supporting sources
Can a party retract a waiver of contract performance after the other side has changed position?+
No. Under UCC § 2-209(5) and parallel Restatement rules, a party may not retract a waiver if retraction would be unjust in view of the other party's material change of position in reliance on the waiver.
Supporting sources
322 S.W.2d 163Remedies
…December 27, 1947, the date when the resolution was adopted, until the date of her retirement on June 30, 1949. And, second, her change of position, i. e., her retirement, and the abandonment by her of her opportunity to continue in gainful employment, made in reliance on defendant’s promise to pay her $200 per month for life. We must…
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