Fibrosa Spolka Akcyjna v Fairbairn Lawson Combe Barbour Ltd: HL 15 Jun 1942

A contract for the supply by the respondents of special machinery to be manufactured by them was treated as an ordinary contract for the sale of goods. It began valid, but suffered frustration by the outbreak of war.
Held: Lord Wright restated in the English language the maxim ‘nemo debet locupletari aliena jactura of the civil law: ‘It is clear that any civilised system of law is bound to provide remedies for cases of what has been called unjust enrichment or unjust benefit, that is to prevent a man from retaining the money of or some benefit derived from another which it is against conscience that he should keep. Such remedies in English law are generically different from remedies in contract or in tort, and are now recognised to fall within a third category of the common law which has been called quasi-contract or restitution.’
Viscount Salmon said: ‘when one is considering the law of failure of consideration and of the quasi-contractual right to recover money on that ground, it is, generally speaking, not the promise which is referred to as the consideration, but the performance of the promise. If this were not so, there could never be any recovery of money, for failure of consideration, by the payer of the money in return for a promise of future performance, yet there are endless examples which show that money can be recovered, as for a complete failure of consideration, in cases where the promise was given but could not be fulfilled.’ and ‘In English law, an enforceable contract may be formed by an exchange of a promise for a promise, or by the exchange of a promise for an act . . . but when one is considering the law of failure of consideration and of the quasi-contractual right to recover money on that ground, it is, generally speaking, not the promise which is referred to as the consideration, but the performance of the promise.’
Viscount Simon LC said that: ‘In English law an enforceable contract may be formed by the exchange of a promise for a promise or by the exchange of a promise for an act . . but when one is considering the law of failure of consideration and the quasi-contractual right to recover money on that ground, it is, generally speaking, not the promise that is referred to as the consideration but the performance of the promise.’
Lord Wright, Viscount Simon
[1942] UKHL 4, [1943] AC 32
Bailii
England and Wales
Citing:
OverruledChandler v Webster 1904
When a contract is frustrated, ‘the loss lies where it falls.’ . .

Cited by:
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CitedSharma and Another v Simposh Ltd CA 23-Nov-2011
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CitedBarnes (As Former Court Appointed Receiver) v The Eastenders Group and Another SC 8-May-2014
Costs of Wrongly Appointed Receiver
‘The contest in this case is about who should bear the costs and expenses of a receiver appointed under an order which ought not to have been made. The appellant, who is a former partner in a well known firm of accountants, was appointed to act as . .
CitedPrudential Assurance Company Ltd v Revenue and Customs SC 25-Jul-2018
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Issue I: does EU law require the tax credit to be . .

Lists of cited by and citing cases may be incomplete.
Updated: 10 August 2021; Ref: scu.236543