Partial Failure of Consideration

The common law has long made a distinction between total failure ofconsideration and partial failure ofconsideration. In contrast to totalfailureof consideration where the doctrin.e of accrued rights provides for fUllrecovery, the doctrine ofaccrued rights prevents recovery for partial failureofconsideration as a debt. In this paper the author examines partialfailure ofconsideration in the broader context ofpartial performance and the quantummeruit principle. The bar on recovery for partial failure of considerationonly operates to deny a remedy to a party in breach because an innocentparty has a choice of damages or quantum meruit. The author argues thatthe courts should, in certain limited circumstances, allow a party in breach torecover for partial failure ofconsideration or partial performance based onthe quantum meruitprinciple and the equitable doctrine ofunconscionability.Such an approach can bejustified by analogy with reliefagainstforfeiture.