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From Wikipedia, the free encyclopedia Frustration in English law is an English contract law doctrine, which acts as a device to set aside contracts where an unforeseen event either renders contractual obligations impossible, or radically changes the party's principal purpose for entering into the contract. Historically, there had been no way of setting aside an impossible contract after formation; it was not until 1863, and the case of Taylor v Caldwell,[1] that the beginnings of the doctrine of frustration were established. Whilst the doctrine has seen expansion from its inception,[2] it is still narrow in application;[3] Lord Roskill stated that it is: "not lightly to be invoked to relieve contracting parties of the normal consequences of imprudent bargains."[4]
Contents
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1 Development of the doctrine 2 Frustrating events o 2.1 Destruction of the subject matter o 2.2 Supervening illegality o 2.3 Incapacity or death 3 Limits of the doctrine 4 Apportionment of losses 5 Law Reform (Frustrated Contracts) Act 1943 6 See also 7 Notes 8 References
The burning down of the Surrey music hall in Taylor v Caldwell deemed a contract for its hire frustrated Early cases such as Paradine v Jane[5] show the historical line that the courts took toward a frustration of purpose in contract; here, the courts held that where land under lease to the defendant had been invaded by Royalist forces, he was still under obligation to pay rent to the land owner.[6] It was not until the case of Taylor v Caldwell that a doctrine of frustration was formally recognised, alleviating the potential harshness of previous decisions.[7] Here, two parties contracted on the hire of a music hall, for the performance of concerts. Subsequent to contracting, but prior to the dates of hire, the music hall burned down. It was held the contract was impossible to perform;[2] Judge Blackburn stated that the absolute liability set forth in Paradine v Jane would not apply in the instant case, as there was an implied condition that the music hall would be in existence at the date of the planned concerts.[2] This had the effect of excusing the parties from the contract. The implied term test was explained by Lord Loreburn: In most of the cases it is said that there was an implied condition in the contract which operated to release the parties from performing it, and in all of them I think that was at bottom the principle upon which the court proceeded.[8] Subsequent development occurred in the case of Krell v Henry,[9] a case arising out of the coronation of King Edward VII. The defendant here agreed by contract to rent a flat located at Pall Mall from the plaintiff, for the purpose of watching the coronation procession of Edward VII scheduled for June 26 and 27.[10] Despite the fact that there was no mention of the coronation ceremony in any of the parties written correspondence, the court held the contract frustrated in purpose by the cancellation of the coronation. It could be inferred from the dealings of the parties that the principal aim of the hiring was the witnessing of the coronation.[11] This result can be contrasted with that of Herne Bay Steamboat Co v Hutton,[12] another coronation case. In this case, an individual hired a steamboat for the purposes of travelling to Spithead to cruise round an assembled fleet, and to witness the naval review of King Edward's coronation. The courts subsequently held that following the cancellation of the coronation, the entire purpose of the contract had not been frustrated, as the cruise was still possible.[13] The test used in these two cases - finding a radical change in the intentions of contracting parties - has found favour over the implied term test, which has been criticised to the extent of being called a "grave threat to the sanctity of contract."[14] A common objection to this test was that it was 'artificial'; in many cases, such as Davis Contractors v Fareham UDC,[15] it would not be true to say that both parties would intend for an implied term to cover particular situations. Thus an implication of a term to discharge a contract may run contrary to the intentions of the contracting parties.[16] As a result, a test of contractual purpose is preferred, as laid out in Davis Contractors v Fareham UDC, in the judgement of Lord Reid: The question is whether the contract which they did make is, on its true construction, wide enough to apply to the new situation: if it is not, then it is at an end.[17]
employee to perform contractual duties - due to, in this case, a heart attack - frustrates his contract of employment. Such a principle terminates a contract for employment immediately; the employee is not entitled to the same protection under employment protection legislation, as demonstrated in Notcutt, where Mr Notcutt was not allowed to pursue sick pay under the Employment Protection (Consolidation) Act 1978.[28]
The case of Maritime National Fish Ltd v Ocean Trawlers Ltd demonstrates that a frustrating event cannot be in any way self induced The courts have imposed several limits on where contracts will be frustrated, so as - in the interests of certainty - not to release parties from their contractual obligations too easily. An important limitation is that economic hardship, or a 'bad bargain', will not render a contract frustrated.[29] Thus in Davis Contractors v Fareham UDC the courts declined to render a contract for building work frustrated purely because the price of labour and materials had increased.[30] Lord Reid explained the distinction between a contract becoming more onerous, and being of a different kind:
In a contract of this kind the contractor undertakes to do the work for a definite sum and he takes the risk of the cost being greater or less than he expected. If delays occur through no one's fault that may be in the contemplation of the contract, and there may be provision for extra time being given: to that extent the other party takes the risk of delay. But he does not take the risk of the cost being increased by such delay. It may be that delay could be of a character so different from anything contemplated that the contract was at an end, but in this case, in my opinion, the most that could be said is that the delay was greater in degree than was to be expected. It was not caused by any new and unforeseeable factor or event: the job proved to be more onerous but it never became a job of a different kind from that contemplated in the contract.[31]
Of importance in deciding whether a contract is frustrated is that the event cannot have been in any way induced by either of the parties.[32] For example, a claim of frustration was denied in Ocean Tramp Tankers Corporation v V/O Sovfracht,[33] where a charterer for a ship allowed it to travel through the Suez Canal, and subsequently become stuck
(following the closure of the canal during war time). Additionally, where a frustrating event is foreseeably induced, a claim of frustration may be denied.[34] Maritime National Fish Ltd v Ocean Trawlers Ltd[35] exemplifies this principle. Maritime National Fish contracted to hire a steam trawler fitted with an otter trawl, from Ocean Trawlers Ltd. Both parties knew that the use of such a vessel without a license was illegal. Subsequently, Maritime National Fish applied for five licenses from the Canadian government, however, only three were granted. Maritime National Fish did not name the hired vessel from Ocean Trawlers as one of the licensed vessels, and refused to go through with the hire, on the grounds the contract was frustrated. Their appeal was rejected on the grounds that they themselves had taken on the risk that some licenses may be denied, and by thereby not allocating a license to their chartered steam trawler, the frustration was self induced.[3]
It is clear that any civilized system of law is bound to provide remedies for cases of what has been called unjust enrichment or unjust benefit, that is to prevent a man from retaining the money of or some benefit derived from another which it is against conscience that he should keep.[41]
This judgment was not however a complete solution to the problem.[42] A remaining problem could be found in Whincup v Hughes,[43] where a watch maker died after performing one year of his contractual obligations. None of the 25 paid could be recovered, despite just a small portion of the contractual obligations being fulfilled.
recovered in full or in part, in a manner which the courts deem equitable. Additionally, as demonstrated in BP Exploration Co (Libya) Ltd v Hunt (No. 2),[45] where a party has had a considerable benefit conferred upon them prior to the frustrating event, the courts can apportion some or all of this benefit to the other party, again where it is deemed equitable.