consideration. Thus, in Chandler v Webster, the plaintiff contracted to hire a room which overlooked the route of the coronation procession of King Edward VII. However, due to the King’s illness, the procession was cancelled with the result that the contract was held to be frustrated. The contract provided for payment of the hire charge in advance and some, but not all, of that advance payment had been made. It was held that the plaintiff was not only unable to recover the amount he had paid in advance, but was also obliged to pay those sums provided for in the contract which were due before the date of frustration. In Chandler, it was considered that the contract had to be void ab initio before there could be a total failure of consideration, but in this respect the decision must be regarded as incorrect. Subsequently, in Fibrosa v Fairbairn,

doi:10.4324/9781843141518-155

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consideration. Thus, in Chandler v Webster, the plaintiff contracted to hire a room which overlooked the route of the coronation procession of King Edward VII. However, due to the King’s illness, the procession was cancelled with the result that the contract was held to be frustrated. The contract provided for payment of the hire charge in advance and some, but not all, of that advance payment had been made. It was held that the plaintiff was not only unable to recover the amount he had paid in advance, but was also obliged to pay those sums provided for in the contract which were due before the date of frustration. In Chandler, it was considered that the contract had to be void ab initio before there could be a total failure of consideration, but in this respect the decision must be regarded as incorrect. Subsequently, in Fibrosa v Fairbairn,

ABSTRACT

In Chandler, it was considered that the contract had to be void ab initio before there could be a total failure of consideration, but in this respect the decision must be regarded as incorrect. Subsequently, in Fibrosa v Fairbairn,94 it was held by the House of Lords that it was unnecessary to show that the contract was void ab initio in order for there to be a total failure of consideration, provided there was no value in the performance on one side so that the other party, who had made an advance payment, would be entitled to recover the amount he had paid. Despite this decision, problems still remained. For example, the common law rule made no provision for the value of the work done by the party who had received payment. Moreover, the rule was confined to cases of total failure of consideration, so that if the plaintiff received some benefit, however small, he would be unable to recover the amount he had paid to the other party.