Mitchell, C; Mitchell, P; (2020) Recurring Issues in Failure of Basis. Lloyd's Maritime and Commercial Law Quarterly , 498 pp. 498-515.

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Abstract

Claims in unjust enrichment lie to recover benefits transferred on a basis which fails. Such claims are often made in cases where the parties had a contract that was terminated for breach, with the result that the issues arise, whether a claim in unjust enrichment should be allowed, and if so, whether the existence of the parties’ contract should affect the substance of the claim. Another issue, which arises in every failure of basis case, is that one cannot know whether a failure of basis has occurred unless one has first identified the basis for the defendant’s enrichment—and doing this may require the court to undertake a tricky process of interpretation. The article discusses these points, drawing on recent appellate decisions from around the common law world for illustrative examples.

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