(D) THE NATURE OF THE ENRICHMENT

Traditionally, those grounds of restitution which are founded on the principle of failure of basis have only been invoked to obtain restitution of money from the defendant. This is because the ground of total failure of basis originated in the action for money had and received.^[1] But, with the abolition of the forms of action, there is no longer any reason why this ground of restitution should be inapplicable where the enrichment received by the defendant takes the form of goods or services. Recognition of the principle of symmetry^[2] in particular would suggest that restitutionary remedies should be available regardless of the type of benefit received by the defendant.^[3] A number of cases have implicitly recognized that restitutionary remedies are available where the basis has failed even where the enrichment is goods or services.^[4] That the grounds of restitution based on failure of basis are available generally regardless of the nature of the enrichment, was recognized explicitly by the House of Lords in Cobbe v Yeoman’s Row Management Ltd,^[5] where a claim succeeded on the ground of total failure of basis where the claimant had provided services to the defendant on the basis that a written contract would be made between them, but no such contract was made. Despite this, a number of cases have now recognized that, where the claimant has provided services to the defendant pursuant to a contract which the defendant has breached, the claimant will be confined to a contractual claim.^[6] Since there is no such restriction where the claimant has paid money to the defendant pursuant to a contract which the defendant then breaches, the principle of symmetry between types of enrichment has itself been breached. This is indefensible.

[1] The distinction was affirmed in Taylor v Motability Finance Ltd [2004] EWHC 2619 (Comm). See p 136,
[2] above. 27 See p 125, above.
[3] See PBH Birks, ‘Failure of Consideration’ in F Rose (ed), Consensus ad Idem—Essays in the Law ofContract in Honour ofGuenter Treitel (London: Sweet and Maxwell, 1996), 185-6.
[4] See, in particular Pulbrook v Lawes (1876) 1 QBD 284, discussed at p 351, below. Where a contract isfrustrated restitution will lie in respect of money and non-money benefits. See p 357, below.
[5] Cobbe v Yeoman’s Row Management Ltd [2008] UKHL 55, [2008] 1 WLR 1752.
[6] See p 136, above. 32 Attorney-General v Blake [2001] 1 AC 268. See p 473, below.