The parties had agreed to the exchange and so Lord Shaw felt it looked like both failure of consideration and a condictio causa data causa non secuta. (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.
Part II cleared the ground, establishing that in contrast to the common law's unjust factors, the civilian condictio claims are mutually exclusive and never lie concurrently because the condictio indebiti and the condictio causa data causa non secuta, for example, deal with the consequences of the failure of different legal bases or underpinning purposes of the transfer--and there is (or should be) only ever one legally effective purpose.
At least some of the second limb cases look to be based on an expectation of reciprocal performance, which in turn looks like a condictio causa data causa non secuta. As we have seen in a civilian system, this action and the condictio indebiti are mutually exclusive, but the two limbs of the Garland test could equally have exclusive spheres of operation.
Secondly, it may need to morph the two stages of Garland into a condictio indebiti and a condictio causa data causa non secuta, and possibly split the second stage again to hive off a condictio ob causam finitam.
The claimants would be entitled to recover in the condictio causa data causa non secuta, even if the parties knew there was no obligation.
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. The Digest also includes a broader category--the condictio sine causa (66) (debt claim where the basis is absent) which, although in some ways a residual category, (67) also includes wide statements of principle, and was regarded by some Civilian authors as providing a general remedy.
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.