In Fibrosa the House of Lords addressed the apparent injustice of this situation and stated that where there had been a total failure of consideration, then money already paid could be recovered and money due and payable need not be paid. In Stocznia Gdanska SA v Latvian Shipping Co [1998] 1 WLR 574, Lord Goff explained the test for total failure of consideration:

I start from the position that failure of consideration does not depend upon the question whether the promisee has or has not received anything under the contract … In truth, the test is not whether the promisee has received a specific benefit, but rather whether the promisor has performed any part of the contractual duties in respect of which the payment is due.

Where there is a partial failure of consideration, the common law rules in Krell and Chandler would still apply.