Thirdly, Professor Birks has to impose on his wider view an arbitrary and admittedly unprincipled modification so as to ensure that a resulting trust does not arise when there has only been a failure to perform a contract, as opposed to total failure of consideration : see pp . 356-359 and 362.
32.
It followed that the contract upon which Mr . Ward relied was void for want of authority, and that Guinness was therefore entitled to recover from Mr . Ward the money paid under it on the ground of total failure of consideration, or alternatively on the basis that he had received the money as constructive trustee.
33.
For on receipt of the money by the payee it is to be presumed that ( as in the present case ) the identity of the money is immediately lost by mixing with other assets of the payee, and at that time the payee has no knowledge of the facts giving rise to the failure of consideration.
34.
Thus neither in the case of a subsequent failure of consideration nor in the case of a payment under a contract subsequently found to be void for mistake or failure of condition will there be circumstances, at the date of receipt, which can impinge on the conscience of the recipient, thereby making him a trustee.
35.
When, however, an innocent party seeks to recover money paid in advance under a contract in expectation of the entire performance by the contract-breaker of its obligations under the contract and the contract-breaker renders an incomplete performance, in general, the innocent party cannot recover unless there has been a total failure of consideration.
36.
Debtors were not permitted to argue any other defenses including, payment without taking of a sealed acquittance, payment at another time or place then specified in the bond, failure of consideration, impossibility of performance, or fraud in the underlying transaction . The debtor who was wrongly made to pay twice, however, could win damages in a writ of trespass for the taking.
37.
He noted that " although no part of the principal sum had been repaid by the appellants, two instalments of interest had been paid; and the question arises whether these two payments of interest precluded recovery on the basis that in such circumstances the failure of consideration for the advance was not total . " He then answered that the view of the Court was that it did not.
38.
However the editors of Hayton & Mitchell say this case might nonetheless have been rightly decided, " depending on whether the ultra vires depositors'claim to recover their money on the ground of failure of consideration was founded on the assertion that the building society had failed to repay their money, or on the assertion that their contracts with the building society had been void from the beginning ."
39.
The disaster was the subject of the celebrated Australian restitution case " Baltic Shipping Company v Dillon " ( The Mikhail Lermontov ) ( 1993 ) 176 CLR 344, in which Mrs Dillon, having already been awarded damages for loss to both her possessions and person, as well as a pro-rated refund on her cruise ticket, claimed restitution for the remaining value of her ticket on the basis of failure of consideration.
40.
Second, Professor Birks'approach appears to assume ( for example in the case of a transfer of value made under a contract the consideration for which subsequently fails ) that the recipient will be deemed to have been a trustee from the date of his original receipt of money, i . e . the trust arises at a time when the " trustee " does not, and cannot, know that there is going to be a total failure of consideration.
