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Failure of consideration is a highly technical area of law. Particular areas of controversy include: Whether the failure of the consideration must be 'total', [3] and the scope and meaning of such a requirement; Whether 'consideration' refers not only to bargained-for counter-performance by the defendant, but also a legal or factual state of ...
restitution, failure of consideration, change of position Goss v Chilcott [1996] UKPC 17 (23 May 1996) is a decision of the Privy Council on appeal from New Zealand relating to the law of restitution , and in particular the requirements of total failure of consideration in relation to loans where some repayments had been made, and the defence ...
Consideration may move from the promisee or any other person. Under Indian law, consideration may be from the promisee of any other person i.e., even a stranger. This means that as long as there is consideration for the promisee, it is immaterial who has furnished it. Consideration must be an act, abstinence or forbearance or a returned promise.
The House of Lords found in favour of Fibrosa. Viscount Simon was critical of the Chandler case and found that it would apply only where there has been no failure of the consideration. However, in the circumstances, there was a failure of the consideration as Fibrosa had received none of the machinery ordered.
Failure of consideration typically arises where a contract is "ineffective". [44] This is not a term of art, but rather a useful tool for exposition. [45] A contract may be ineffective for a number of reasons. Failure of consideration may arise: Where a contract is discharged for breach or repudiation by the claimant or defendant;
And thus, it is held, there is a total failure of consideration. [14] As this Court stated in David Securities Pty Ltd v Commonwealth Bank: [15] "the notion of total failure of consideration now looks to the benefit bargained for by the plaintiff rather than any benefit which might have been received in fact". 14.
An action for money had and received to the plaintiff's use is the name for a common law claim derived from the form of action known as indebitatus assumpsit.The action enabled one person to recover money which has been received by another: for example, where a plaintiff paid money to the defendant while labouring under a mistake of fact or where there was a total failure of consideration.
Consideration is an English common law concept within the law of contract, and is a necessity for simple contracts (but not for special contracts by deed).The concept of consideration has been adopted by other common law jurisdictions, including in the United States.