Failure of Basis after Benedetti v Sawiris: Clarifying the English Approach

Abstract

The decision in Benedetti v Sawiris has had a lasting influence on English restitution law, particularly in shaping judicial approaches to valuation and failure of basis. This article reassesses the English doctrine of failure of basis in light of subsequent case law, focusing on its application in commercial and quasi-contractual settings. It examines whether courts have developed a coherent understanding of when a basis has failed and how partial performance should be treated. The article argues that while English law has embraced failure of basis as a unifying concept, uncertainty persists regarding its interaction with contractual risk allocation. By analysing recent decisions, the article proposes a more structured approach that clarifies the boundaries between contractual disappointment and restitutionary injustice. The article concludes by emphasising the importance of doctrinal clarity in maintaining commercial certainty.