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MISTAKE AND FAILURE OF CONSIDERATION
1. Where a contract is void or unenforceable, C will commonly be able to point to mistake or failure of consideration (ie. Rover International) BUT
2. As failure of consideration needs to be total, mistake is better (especially as it includes mistake of law)
1. Birks - mistake refers to the present. A mistake as to the future is a misprediction, which don't trigger restitution because C necessarily takes the risk of being incorrect about the future.
2. Seah - A misprediction doesn't involve an impairment of consent nor wrong data being fed into C's decision-making process
3. Dextra Bank v Bank of Jamaica - Privy Council expressly approved Birk's defintion
TRADITIONAL SUPPOSED LIABILITY TEST
1. Used to be a supposed liability test for mistake that stated that: money was recoverable in an action for money had and received if the payor paid in the false belief that the facts were such that it was under a legal liability to the payee to make the payment
2. This supposed liability test was stated in Kelly v Solari and Aiken v Short
3. Kelly v Solari
- Relied on this test
- FACTS: C insurance company paid over money on a life insurance policy, apparently not realizing that the policy had lapsed because the deceased had failed to pay a premium. A new trial was ordered to
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