Unjust enrichment and contracts: failure of basis claims without undermining bargains—scope, limits and key cases (Costello, Barnes, Dargamo, Barton), including total/partial failure, termination, defences and pleading guidance

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Practice notes

ARCHIVED: This Practice Note is archived and is no longer maintained.

This Practice Note examines the particular questions that can emerge when the parties are bound by a contract yet a potential claim in unjust enrichment might also be in play. In that situation, scope for pursuing unjust enrichment in the presence of an ongoing contractual arrangement is narrow, as outlined below. In addition, any party must still meet the general prerequisites for bringing an unjust enrichment claim as set out in Practice Note: Unjust enrichment—elements of the claim, and remain alert to any defences that could be advanced, as discussed in Practice Note: Unjust enrichment—defences.

The relationship between unjust enrichment and contracts

Claims seeking restitution for unjust enrichment are separate and different from actions in contract. The general rule is that, where a claimant and a defendant are linked by a contractual bargain, the agreement governs their respective rights and obligations, including how risk is allocated, until the agreement is discharged or avoided (which itself falls within contract law). See: Terminating contracts—how and when a contract ends—overview. Accordingly, the contract will allocate risk and govern performance while it subsists. This is consistent with the principle that restitutionary remedies...

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Web page updated on 22/05/2026

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