ABSTRACT
This chapter is concerned with the question whether, and if so in what circumstances, such a restitutionary claim may be defeated by the illegality which rendered the contract unenforceable. A personal restitutionary claim is in general available to a plaintiff who has paid money or conferred other benefit on the defendant and there has been a failure of the consideration for which the money was paid or the benefit conferred. Although the personal action in restitution has long been recognised in the case of void contracts, it has for a long time been excluded where the void contract is a borrowing contract. The view has from time to time been expressed that a personal restitutionary claim should be available to recover money paid under an illegal transaction. In general a personal restitutionary claim for failure of consideration is available where the plaintiffs performance has been other than in the payment of money.
