(C) THE CLAIMANT BREACHED THE CONTRACT

Where the reason why the claimant failed to perform the contract was that he or she breached it, it will be very difficult to prevent the defendant from relying on the subjective devaluation principle, save where it can be shown either that the defendant had voluntarily accepted the benefit despite the breach, or that the benefit was incontrovertibly beneficial.

(D) THE CONTRACT WAS FRUSTRATED

Where the claimant was unable to perform his or her side of the bargain because the contract was frustrated, it will still be possible to establish that the defendant has been enriched by virtue of the statutory regime under the Law Reform (Frustrated Contracts) 1943, s 1(3).207

(E) ENTIRE CONTRACT

Where the contract is entire, meaning that the defendant is not liable to pay until the claimant has fully performed his or her side of the bargain, then, even though the defendant can be considered to have been enriched by the part performance of the contract, the claimant’s restitutionary claim will fail.208 This is because the effect of making the contract entire is that the claimant takes the risk of not fully performing it, so the right to obtain restitution is effectively excluded by the contract.209

 
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