ABSTRACT
Thus, once a contract is set aside on the ground of mistake, incapacity, duress or whatever, restitution problems can arise if property or money has been conveyed under the defective transaction: for the contractual obligation is often no longer around to adjust the parties’ rights and duties. In the case of infants restitution is now available under statute (above § 6(b)), and in a range of other situations the quasi-contractual remedy of money had and received might be available to prevent one party from unjustly enriching himself at the expense of another (cf Chapter 11 § 2(a)). At common law, therefore, money paid under a defective contract will be recoverable if there has been a ‘total failure of consideration’,222 unless the defect in the contract arose as a result of illegality (cf above § 6(c)) or the defendant is able to establish a change of position.223 One might add that money paid under a mistake of law was, prima facie, not recoverable since ignorance of the law was seen as no excuse; however, this rule has now been abolished.224
