Concurrent Liability in Contract and Unjust Enrichment

Concurrent liability in contract and tort is firmly established in English law. A plaintiff with a cause of action in contract may bring an action in tort in respect of the same set of facts. Whether the plaintiff is successful in tort depends on whether the ordinary elements of the tort cause of action are satisfied. The rules are different with respect to concurrent liability in contract and unjust enrichment. According to the orthodox view, an action in unjust enrichment in respect of facts that establish a breach of contract is automatically barred unless two requirements are satisfied: (1) there has been a total failure of consideration; (2) the breach is “fundamental”, by which is meant the breach is such as to allow the plaintiff to terminate the contract. The first requirement has been heavily criticised, and seems likely to disappear eventually, if this has not happened already. The “fundamental breach requirement” has been virtually unchallenged. This essay argues that the fundamental breach requirement should also be eliminated. If it is eliminated, and assuming that the total failure requirement disappears, the relationship between contract and unjust enrichment would henceforth be the same as the relationship between contract and tort, namely there would be “general” concurrent liability in each case.