Topic: Artificiality in failure of consideration

Presenter: Dr Paul Mitchell - Kings College, London

The principle that a payment can be recovered where there has been a total failure of consideration is one of the foundations of the law of unjust enrichment. Yet its precise content remains controversial. Traditionally the emphasis has been on performance: if the claimant received any part of what was promised in return for the payment, there can be no recovery. However, this analysis fails to account for a variety of cases in which some element of performance was given, but the claim succeeded. For instance, in Rowland v Divall the purchaser of a car received no title from the seller, but did have use of the car for several days; his claim for the return of the price succeeded. Such cases are usually dismissed as artificial. However, as this paper demonstrates, failure of consideration was never exclusively conceived in terms of a failure of performance, nor have later courts - dealing with a variety of situations - felt obliged to restrict it to performance. On the contrary, courts have consistently recognised that a total failure of consideration may consist in a failure to confer particularly important legal rights on the party making the payment. 

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Contact: Beth Williams, ph: 334 69350, email:

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