We now know the effect of discharge to be different and, as " Fibrosa " indicates, nothing more than that usual effect is necessary to ground the action to recover money paid on a total failure of consideration.
22.
In the context of the recovery of money paid on the footing that there has been a total failure of consideration, it is the performance of the defendant's promise, not the promise itself, which is the relevant consideration.
23.
I do not understand how, viewed from the perspective of failure of consideration, the enjoyment of those benefits was " entirely negated by the catastrophe which occurred upon departure from Picton ", to repeat the words of the primary judge.
24.
He then observed that, in order to avoid over-compensation, a claim for restitution of money paid on a total failure of consideration will succeed only if accompanied by counter-restitution of benefits bargained for and received by the claimant.
25.
Rejecting proposed analyses of the cruise as an entire obligation, and alternatively as a payment conditional on performance, the High Court re-affirmed the rule that failure of consideration must be total in order for a claim for restitution to be sustained.
26.
By cl . 12 of her further amended writ of summons " in personam ", the respondent claimed : " return of the full fare in the sum of $ 2, 205.00 as for a total failure of consideration ".
27.
The case is now generally accepted as authority for the proposition that in the case of loan transactions, there may be a " total " failure of consideration even if some repayments had already been made, even though strictly speaking those comments were " obiter dictum ".
28.
After considering all the authorities the Court was satisfied that the bank could enforce a valid claim for money had and received under the law of restitution, and could claim the return of the sums advanced under the void contract ( plus interest ) on the basis of failure of consideration.
29.
The fourth question is, no doubt, found by the jury for the plaintiff; but we think in finding it they must have made a mistake in law as to what was a sufficient failure of consideration to set the defendants at liberty, which was not a question for them.
30.
C . J . agreed on this point, noted that the appellant had urged that there was no total failure of consideration as " ( t ) he respondent had had the benefit of eight of fourteen days of an idyllic cruise . " He concluded that the contract of carriage was an entire one.
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