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I am a law student at UWA doing an honours thesis in restitution - in particular - I am examining a doctrine of partial failure of consideration, and have encountered a few interesting points on which I would appreciate anyone's opinion.

1. The nature of a quantum meruit as a remedy - particularly for a total failure of consideration- appears anomalous within the law of unjust enrichment. Surely the enrichment of a defendant would be better measured by a measure such as the net realisable value of a benefit received, than a quantum meruit which really is measuring the plaintiff's reasonable costs rather than a defendant's gain. At best it is just a rough cost-based approximation of a defendant's gain.

2. Although most commentators seem set on a contractual ceiling in cases where a quantum meruit exceeds the contract price isn't this allowing a subjective measure of the defendant's gain? The principle of subjective devaluation in relation to the question of enrichment is directed to protecting the principle of freedom of choice. Once it is determined that the def has been enriched, it would not appear that the defendants subjective opinion as to the value of his gain (as evidenced by the contract price) is relevant to the determination of the quantum of the restitutionary reward. Further, in the context of unenforceable contracts, a plaintiff cannot rely on the contract price when it is MORE than the quantum meruit (Deane J, Pavey) so why should a defendant in breach be able to rely on the contract price as a ceiling?

That's all for now,

Any comments would be greatly appreciated!

James Edelman