(63) She reanalyzes the condictio indebiti in terms of different unjust factors, including failure of consideration. (64) We have already seen that there is an error requirement in the action additional to the requirement that the contract or other putative reason for the payment have been void.
(191) Burrows deals with free acceptance as part of a chapter on failure of consideration. (192) The central point is the loose understanding that the claimant would be "paid".
In essence, the second limb of Garland still sometimes behaves like a failure of consideration or free acceptance action applicable in cases where the parties mistakenly believed there was a contract or valid obligation.
In English law this would be a failure of consideration case.
These problems about the ambiguity of 'failure of consideration' and the requirement of total failure may be linked.
On the contrary, Rowland v Divall both highlights and exemplifies an approach to failure of consideration, which analyses the basis of the transaction in terms of the legal rights conferred on the payer in return for the payment.
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. The issue was whether the contract could be rescinded ab initio for the defendant's breach, and the court held that rescission was impossible given the claimant's occupation of the premises.
Another, which applied in Spangaro, is failure of consideration. Mr Spangaro paid for his interests in the investment project on the specific basis that the investment would go ahead.
(84) In other words, unjust enrichment is the basis of the restitutionary action for failure of consideration. As can be seen, one of the three cases cited by Finkelstein J for that proposition was Roxborough.
Only Gummow J in Roxborough dismissed unjust enrichment as the underlying principle in 'failure of consideration' cases.
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.' (54) On this point Birks was later vindicated by the acceptance of the wider concept in Roxborough, where the joint judgment of Gleeson CJ, Gaudron and Hayne JJ recognised that '[f]ailure of consideration is not limited to nonperformance of a contractual obligation, although it may include that'.
(60) The concept of 'failure of consideration' was liberated by the Court from its specifically contractual applications and extended to non-contractual payments where 'a contemplated state of affairs has disappeared.' (61) The majority also flexibly apportioned the tax component from the rest of the price of the cigarettes to facilitate restitution.