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Abstract

For a claimant to receive restitution for the unjust factor of a failure of basis, the traditional rule requires the failure to be total. However, recent case law has questioned whether this requirement is still necessary. This article examines the current law to show that adherence to the total failure rule has been abrogated by several exceptions. After a careful analysis of the reasons for the rule, and the reasons for allowing recovery on a partial failure, it is argued that a better approach would be to allow recovery on a partial failure of basis where counter-restitution can be made of any received benefit and where restitution would not upset the contractual allocation of risk.

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