In England, the case of Fibrosa Spolka Ackjyna v Fairbairn Lawson Combe Barbour LtdF also makes clear that consideration refers to performance, and therefore, in cases of termination of contracts for breach (or frustration on the facts of that case) (38) restitution is made via the unjust factor of failure of consideration.
57) In English law, failure of consideration lies at common law in any case where counter-performance is not forthcoming.
68) In a paper later published in the 2014 Edinburgh Law Review following a symposium hosted by the Edinburgh Centre for Private Law, she reiterated the point and added failure of consideration to the list.
Du Plessis goes on to argue that Scott, by raising the prominence of mistake, duress, or failure of consideration, reduces the condictio claims from the status of substantive cause of action to a mere form of action: a procedural form of words at best.
The second problem relates to the requirement that a failure of consideration must be 'total' in order for a claim in unjust enrichment to lie.
In order to avoid the injustice of denying a claim in unjust enrichment to a claimant who has received a small measure of performance, courts may have been tempted to modify their approach to what counts as the 'basis' of the transaction: by holding that what the claimant has received was not truly part of the consideration for which the payment was made, the unjust enrichment claim for total failure of consideration is preserved, and justice is done.
Finally, it should be made clear that this article is not intended as a contribution to the ongoing debate as to whether the law should insist on total failure of consideration before a claim in unjust enrichment will lie.
In fact, a closer inspection of the reasoning in Hunt v Silk shows that the point of that case was not whether there had been a total failure of consideration.
In other words, unjust enrichment is the basis of the restitutionary action for failure of consideration.
Gleeson CJ, Gaudron and Hayne JJ in Roxborough did not expressly say that the relevant claim in that case, for failure of consideration, was a claim in unjust enrichment.
If there had been a total failure of consideration, because, for example, there had been a prepayment for goods which were never delivered, the respondent's duty to make restitution would have been clear.
An endnote to the revised edition of An Introduction to the Law of Restitution drew attention to the High Court decision in Muschinski v Dodds, (53) stating that it 'makes a major contribution to this field [transfers for purposes] and to the wide concept of failure of consideration
the recognition of which is advocated in the text.