Mistake, Failure of Consideration and the Planning Theory of Intention

Recovery of mistaken payments in the law of restitution is often justified by reference to a vitiated intention and that of payments where there is a failure of consideration by reference to a qualified intention. This paper aims to investigate whether this is a misleading characterisation and suggests that both causes of action should be understood in terms of conditions affecting our intentions. Specifically we should look at the failure of our planning agency, and Michael Bratman’s theory of agency in particular. In cases of mistaken payments we should look at the failure of a background condition to the payment. In such cases to fail to allow recovery is to fail to respect me as an autonomous actor, acting under norms having agential authority for me. In failure of consideration cases the autonomy of the other party is at stake, but we can take this into account by positing not a failure of a condition affecting personal intention, but affecting collective intention. There are different views on what collective intention is and how it should be understood, which may themselves have different implications in terms of the concurrency of mistake and failure of consideration as unjust factors. The paper examines different ways in which collective intentions might fail and how they fit the failure of consideration paradigm.