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Sender:
Lionel Smith
Date:
Wed, 3 Mar 1999 10:40:14
Re:
Retention of Title in Contracts of Sale of Goods

 

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


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