Also known as: change of position · changes position · changing position · change of position defense · change of position doctrine
Written by attorneys · grounded in primary & secondary sources — see below
A material alteration in a party's situation made in reliance on a promise, representation, or apparent authority. The alteration supplies the basis for enforcement of an otherwise defective agreement or for recognition of a right when justice so requires.
Point Rights and Apex Attorneys orally agreed midway through a year-long engagement to add regulatory work for an extra $150,000. Point Rights hired additional associates and declined other matters in reliance on the new fee. When Apex later refused the extra payment, the material change of position made enforcement of the oral modification just.
Prairie Digital received emails from Ash Stack describing a permanent easement for fiber-optic cabling across an office building. Prairie Digital paid for server upgrades, relocated critical servers, and customized the facility with new wiring. The substantial expenditures in justifiable reliance on the easement prevented the statute of frauds from barring enforcement of the intended servitude.
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Imperial Buildings obtained a valid building permit under existing zoning and spent over $800,000 installing plumbing risers, electrical upgrades, and framing for new units. The city then rezoned the area and revoked the permit. The good-faith expenditures created a vested right that equity protected against the later zoning change.
After an original written contract, the parties orally agreed to different delivery terms. The buyer made no expenditures or other alterations in reliance on the oral change. Because there was no material change of position, the prior written terms remained in force and the oral agreement did not modify the contract.
A seller orally waived a delivery deadline in an ongoing contract. The buyer immediately hired extra staff and purchased nonrefundable materials to meet the new schedule. Reinstatement of the original deadline would have been unjust given the buyer's material change of position in reliance on the waiver.
When a party alters its position in justifiable reliance on an oral agreement, enforcement may be required to avoid injustice even though the agreement lacks a signed writing. Courts examine whether the reliance was substantial, foreseeable, and directly tied to the promise.
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Hiring additional personnel, declining other business opportunities, or making nonrefundable purchases in reliance on an oral modification qualify when they would make reinstatement of the original terms unjust.
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A landowner who obtains a valid permit and makes substantial good-faith expenditures acquires a vested right that equity protects from subsequent rezoning or permit revocation.
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If the parties enter an oral modification but the promisee makes no material alteration in reliance, the statute of frauds continues to bar enforcement of the modification and the prior written terms remain controlling.
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…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…