Contract as the Remedy for Failure of Consideration

awarded to "correct" an "unjust enrichment" even though the terms of an effective contract did not provide for payment.The "unjust factor" to which the award is a "response" is "failure of consideration". 4 Awards of this nature acutely express the clash with contract that has always lain potential within the modern development of unjust enrichment.The principal advocates of that development recognised this, and in the earlier stages of that development sought to maintain a sense of "subsidiarity" to a "subsisting contract": the existence of a "contractual regime" meant that "as a general rule, the law of restitution has no part to play in the matter", 5 with departures from that rule being "very rare", 6 so that "an undermining of contract by restitution is avoided, and restitution is made subservient to contract". 7 Roxborough v Rothmans and the cases following it have demonstrated the inherent inability of subsidiarity to prevent the clash with contract arising. 8 Barton and Others v Morris and Another, in place of Gwyn-Jones (deceased), 9 handed down by the Supreme Court on 25 January 2023, is a most important attempt by the appeal courts to reassert the priority of contractual regimes.A majority of Lady Rose, with whom Lord Briggs and Lord Stephens agreed, held that the contract did not provide for payment for the services rendered, and that there could not "be a remedy in unjust enrichment because a nil reward was what the parties had agreed". 10Lord Leggatt dissented because he thought the contract provided for payment.His comments on failure of consideration were therefore obiter, but constitute one of the most forthright judicial statements of contractual priority: 4 This article, addressed to the law of contract, will not consider the unjust enrichment argument that failure of consideration is an inadequate terminology to express failure or absence of basis.Judicial mention of failure of consideration, failure of basis, etc will be regarded as equivalent.5