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Failure of Condition or Implied Term?
Author(s) -
Pilkington Timothy
Publication year - 2021
Publication title -
the modern law review
Language(s) - English
Resource type - Journals
SCImago Journal Rank - 0.37
H-Index - 22
eISSN - 1468-2230
pISSN - 0026-7961
DOI - 10.1111/1468-2230.12593
Subject(s) - restitution , appeal , payment , law and economics , business , law , service (business) , term (time) , actuarial science , state (computer science) , high court , political science , economics , finance , physics , algorithm , marketing , quantum mechanics , computer science
In Barton v Gwyn‐Jones the Court of Appeal considered the remedies available to a service provider who performed services pursuant to a contract that expressly stated that they were entitled to payment of a specified sum if the services led to a particular result, but did not expressly state whether the service provider was entitled to payment if the services failed to lead to that result. This note argues that the best explanation of the remedy awarded by the Court of Appeal is restitution for a ‘failure of condition’. It is further argued, although more tentatively, that the restitutionary award was probably not inconsistent with the parties’ contractual allocation of risk.