The action to recover money paid on a total failure of consideration is on a common money count for money had and received to the use of the plaintiff.
12.
No doubt, when money is paid under a contract it can only be claimed back as for failure of consideration where the contract is terminated as to the future.
13.
Though unwilling or unable to take delivery, the plaintiff succeeded in recovering the payment, notwithstanding that Stable J held that there was not a total failure of consideration.
14.
If the incomplete performance results in the innocent party receiving and retaining any substantial part of the benefit expected under the contract, there will not be a total failure of consideration.
15.
However, he also ruled that the Kommunes had to repay the money which had been advanced to them as money had and received on the basis of a failure of consideration.
16.
It is available only if the contract has been discharged, either for breach or following frustration, and if there has been a total, and not merely partial, failure of consideration.
17.
The consequence of the respondent's enjoyment of the benefits provided under the contract during the first eight full days of the cruise is that the failure of consideration was partial, not total.
18.
The court also considered whether Mr and Mrs Goss must repay the loan ( without the punitive interest ) as money had and received, but held that there had been no total failure of consideration.
19.
But the damage to the defendants and the consequent failure of consideration is just as great as if it had been occasioned by the plaintiff's fault, instead of by his wife's misfortune.
20.
}} is a decision of 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 of change of position.
