Restitution Discussion Group Archives
| Sender: |
Look Ho |
| Date: |
Sat, 26 May 2001 08:31:29 -0700 |
| Re: |
Total Failure |
Members might be interested to learn that the requirement
that the failure of consideration be total has still not been shaken off.
In Clowes
Development (UK) Ltd v Mulchinock (24 May 2001), John Martin QC sitting
as a deputy judge said:
"The contract contains no express provision stipulating
what is to happen to payments already made when the contract is terminated
by breach. The position is accordingly governed by the general law. The
most recent authorities, notably the decisions of the House of Lords in
Hyundai Heavy Industries v Papadopoulos [1980] 1 WLR 1129 and Stocznia
Gdanska v Latvian Shipping [1998] 1 All ER 883, indicate that such
payments will be recoverable only if there has been a total failure of
consideration."
Look
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