tailieunhanh - Unjustified Enrichment: Key Issues in Comparative Part 3

Nó sẽ chỉ được trong các trường hợp đặc biệt nhất mà nó sẽ không được có thể giá trị lợi ích nhận được từ bị đơn, nhưng nơi đây là trường hợp, nó phải theo yêu cầu bồi thường restitutionary của nguyên đơn sẽ bị cấm. | failure of consideration myth and meaning 117 need to make counter-restitution of the value of all benefits which the defendant had provided. It will only be in the most exceptional circumstances that it will not be possible to value the benefit received from the defendant but where this is the case it should follow that the claimant s restitutionary claim would be barred. Secondly where the claimant has transferred a benefit to the defendant and he or she has received part of the expected consideration in return restitution can still be justified as a matter of principle. In such circumstances the claimant s intention that the defendant should retain the benefit is contingent on the complete fulfilment of a condition and if that condition is not completely satisfied the claimant s intention that the defendant should retain the benefit can be treated as vitiated. In an important article on the doctrine of failure of consideration42 Stoljar concludes having analysed in detail the history of the doctrine that the requirement that failure must be total is a myth although some of the older cases can be interpreted as suggesting that the failure must be material. The total failure requirement appears to have developed in the nineteenth century by virtue of the rules on pleading and proof. But those rules no longer exist so the total failure requirement should no longer be necessary If the courts do eventually recognise partial failure of consideration as a ground of restitution in its own right this would have a liberating effect on the law in this area. It would for example mean that much of the artifice of the total failure requirement can be avoided because it would no longer be necessary to show that benefits which the claimant had received were collateral or could be apportioned. It would not necessarily mean however that the ground of total failure of consideration would disappear since it would still be advantageous for the claimant to assert that the .