Limitation and liability questions might turn on it; there may be restrictions that we wish to place on claims where quantum meruit for failure of consideration is sought we do not wish to place on mistake claims, or vice versa.
184) It is not essential to the argument here, but I have elsewhere argued that cases which in common law are dealt with through the unjust factor of failure of consideration are based on the failure of a condition affecting a collective intention.
Failure of consideration had been articulated as a ground of recovery by the late seventeenth century, but it is widely acknowledged that the judgment in Moses v Macferlan (52) gave the action for money had and received a system and structure that it had previously lacked.
Moses was not argued as a case on failure of consideration, but failure of consideration makes two appearances in Lord Mansfield CJ's judgment.
Certainly the decision in Dutch v Warren was an example of failure of consideration which involved failing to perform a contractual obligation.
Later commentators, however, have found a reason to interpret the concept of failure of consideration narrowly in the inspiration which Lord Mansfield probably took from Roman Civil law.
If English law is based on the condictio causa data causa non secuta, failure of consideration must mean failure of counter-performance.
At the very least, we can conclude that if Lord Mansfield had intended to confine failure of consideration to the circumstances in which the condictio causa data causa non secuta would lie, it would have been easy to say so, but he did not impose such restrictions.
Finally, it may well be that the concept of failure of consideration provides the key to understanding Moses v Macferlan itself.
These cases show that the decision in Rowland v Divall is not artificial, but represents an important general principle in the law of failure of consideration.
Cases on insurance contracts provide one of the earliest instances of courts emphasising the conferment of legal rights in their analyses of failure of consideration.
At first glance such cases provide strong support for the thesis being advanced here, namely, that the courts have consistently emphasised the conferment of legal rights in their analyses of failure of consideration.