(B) TOTAL FAILURE OF BASIS
In many cases where the claimant has transferred a benefit to the defendant under a contract which is void the ground of restitution has either been expressly recognized as total failure of basis or the fact that the basis had failed totally adequately explains why the restitutionary claim succeeded. Although a contract may be void for a number of different reasons, the question of restitution of benefits transferred in respect of such contracts has arisen in three particular contexts.
(i) Pre-Incorporation Contracts
Where one of the parties to a contract is a company which was not incorporated when the contract was made then, as between these parties,344 the contract is void. That a restitutionary claim may be brought in respect of any benefits which were transferred in respect of such a contact was recognized by the Court of Appeal in Rover International Ltd v Cannon Film Sales Ltd (No 3).345 Whilst all of the judges accepted that the claimant company, which had paid money to the defendant under a pre-incorporation contract, could recover that money on the ground of mistake,346 it was only Kerr LJ who specifically recognized that the claim could also be founded on total failure of basis,347 though Nicholls LJ agreed with his reasoning, so it presumably represents part of the ratio of the case. The defendant had also benefited from services provided by the claimant under the contract and conceded that the claimant was entitled to a quantum meruit. Although no ground of restitution was identified in respect of this claim, again the ground of restitution should also be considered to be either mistake or total failure of basis.
