(C) ABSENCE OF BASIS

Although in some of the cases where restitution has been awarded in respect of benefits transferred under a void contract the ground of restitution is clearly total failure of basis, the majority of cases where restitution has been awarded are simply consistent with this as the ground of restitution. In cases where the claimant has received a benefit from the defendant it will not be possible to establish that the failure of basis was total. There is consequently scope for arguing that the ground of restitution in some of these cases should be absence of basis; if the contract is void the anticipated basis could never legally occur. Whether absence of basis is a recognized ground of restitution remains controversial, although there are three strands of cases which suggest that such a ground of restitution is recognized in English law. These are the annuity cases, cases where payments have been made to discharge a liability which does not exist, and the swaps litigation.

 
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