![]() |
RDG
online Restitution Discussion Group Archives |
||||||||||||
![]() |
![]() |
||||||||||||
|
Gordon Goldberg
wrote:
I thank Andrew Tettenborn and Lionel Smith for
their answers to my message of the 15th Feb. My continuing difficulty
is that I cannot reconcile with principle and authority the hypothetical
reliance on the common count of money had and received by Robert Goff,
L.J., in Clough Mill Ltd. v. Martin If we assume that the ROT buyer has paid £400 of a contractual price
of £450, then misses an instalment thereby committing a breach which is
stipulated to be one which allows the seller to terminate the contract,
and the seller terminates and repossesses, and the goods are worth say
£250 so the seller's position is better than its contractual expectation
interest, I read Lord Goff as suggesting that the buyer could have a claim
in unjust enrichment for £200, that is the enrichment of the seller over
and above its expectation interest. The breaching buyer is allowed to
sue for failure of consideration/basis but its recovery is limited to
an amount which protects the seller's expectation. Notionally the buyer's
claim is to recover £400 paid on a consideration which failed, but the
claim is reduced so that the seller (as the non-breaching party) has its
expectation protected. Or I suppose it could be conceptualized as a counterclaim
for breach of contract.
With which principle and/or authority does that conflict? Is it that
the buyer had the use of the goods for some time and so the consideration/basis
did not really fail?
Lionel <== Previous message Back to index Next message ==> |
||||||||||||
![]() |
![]() |
» » » » » |
|
![]() |
|||||||||
![]() |