This is particularly important in terms of the lack of overlap between the condictio indebiti and condictio causa data causa non secuta.
A different cause of action, the condictio causa data causa non secuta, lies where the purpose is extra-contractual.
The condictio causa data causa non secuta (sometimes shortened to condictio causa data, or condictio cd) is not therefore an equivalent to the failure of consideration unjust factor, despite the similarities, and the condictio indebiti is not--despite the similarities--a mistake action.
33) Ever since, the law in Scotland has affirmed that the condictio causa data causa non secuta can be used in frustration cases.
40) The rule that the condictio causa data causa non secuta applies in frustration cases is, however, probably too well dug in to be uprooted now.
49) The position is messier in South African law where the remedy is termed "cancellation for breach", and Sally Hutton has argued that the condictio causa data causa non secuta ought to lie here.
Evans-Jones has defined the Scots condictio causa data causa non secuta as lying in cases where outside of contract the pursuer performs for a future purpose which failed to materialise; (54) certainly there is a clear rule that outside frustration, the condictio cannot lie where there is a valid contract.
To the extent that failure of counter-performance triggers the condictio causa data causa non secuta, the differences between the condictiones start to dissolve and the actions potentially lie concurrently.
62) The significance of this influence of Roman law for the concept of failure of consideration was universally agreed to be that Lord Mansfield was importing the condictio causa data causa non secuta into English law.
If Lord Mansfield really was intending to import the condictio causa data causa non secuta into English law this was indeed significant, because that condictio was aimed precisely at situations of failure of performance.
65) Furthermore, even if, when he referred to 'failure of consideration', Lord Mansfield was taking direct inspiration from Roman law, it does not follow that he must have been thinking specifically of the condictio causa data causa non secuta.
At the very least, we can conclude that if Lord Mansfield had intended to confine failure of consideration to the circumstances in which the condictio causa data causa non secuta would lie, it would have been easy to say so, but he did not impose such restrictions.