ABSTRACT
In the previous chapter, we examined the reasons which led the drafters of the BGB to provide separately for the restitutionary consequences of a breach of contract. In this chapter, we return to English law, asking very much the same questions. Hobhouse J took the view in the Westdeutsche case1 that the phrase ‘failure of consideration’ always implied that there had at some stage been a valid contract, that it was in effect a ‘contractual principle’. Are there any reasons to support this view? What is the relationship between the law of contract and the law of unjust enrichment in English law? Is there any need to keep them separate, so as to avoid the latter undermining the former?
