Anticipatory Breach and Frustration

Question 1

In which case do we find the definition of ‘frustration’?

Answer 1

Davis Contractors v Fareham Urban District Council

Question 2

When does ‘frustration’ occur according to Lord Radcliffe in Davis Contractors v Fareham Urban District Council?

Answer 2

When ‘without default by either party, a contractual obligation has become incapable of being performed because the circumstances … [are] radically different from that which was undertaken by contract…’

Question 3

When must the ‘frustrating’ event occur for it to be relied upon?

Answer 3

After the formation of the contract

Question 4

If a contract is frustrated what happens to it?

Answer 4

It ends

Question 5

In what three situations may frustration operate?

Answer 5

1. Performance is impossible
2. Performance is illegal or prevented by government
3. The common purpose of the contract is frustrated despite performance is still physically possible

Question 6

What does Taylor v Caldwell tell us about impossibility and frustration?

Answer 6

The defence of frustration is available where performance of a contract is made impossible by subject matter being destroyed.

Question 7

What does Appleby v Myers tell us about when a contract may be made impossible to perform?

Answer 7

If something necessary but incidental to the contract is destroyed, the contract may be frustrated and made impossible.

Question 8

Which three cases illustrate how a person contracted to perform a service who is unable to may end the contract being frustrated through impossibility?

Answer 8

Morgan v Manser
Condor v The Barron Knights Ltd
Robinson v Davison

Question 9

Which case tells us that even temporary unavailability of a thing may frustrate a contract? How unavailable was the thing in this case?

Answer 9

In Bank Line v Arthur Capel & Co a ship was unavailable for five months out of year’s charterparty.

Question 10

Why was the contract in Edwinton Commercial Corporation v Tsavrilis Russ (Worldwide Salvage & Towage) Ltd, The Sea Angel not frustrated?

Answer 10

The ship had been chartered for 20 days and for 19 days salvaged parts from an oil rig. On the final day, when it was due back, the ship was taken by Pakistani authorities. The court said it didn’t matter that the ship could not be returned. The defendants were still liable for the extended period the ship was not returned and the contract was not frustrated because there had nearly been full performance.

Question 11

What limitations are there to the doctrine of frustration?

Answer 11

The doctrine will not be available where:

1. Performance of a contract has become more difficult or costly;
2. Frustration is self-induced;
3. If the event claimed to have frustrated the contract is foreseeable;
4. The subject matter is a lease;
5. There is an express provision concerning the specific frustrating event.