Contract Law Second Term - FRUSTRATION

Question 1

What are the three circumstances in which frustration is used?

Answer 1

Performance is illegal, physically impossible or requires something radically different

Question 2

‘No excuses’

Answer 2

Paradine v Jane

Question 3

Paradine v Jane

Answer 3

‘No excuses’; enemy invasion

Question 4

Taylor v Caldwell

Answer 4

Music hall

Question 5

How did they invoked frustration in Taylor v Caldwell?

Answer 5

Implied term if subject ceases to exist then no contract

Question 6

What Act could Taylor v Caldwell now try and claim under?

Answer 6

LR(FC)A 1943

Question 7

Jackson v The Union Marine

Answer 7

6 months stranded; ‘would have been a different voyage’

Question 8

What are the three issues with implied term in Taylor?

Answer 8

How can unforeseen events be implied, does not consider all terms that would have been implied and courts still frustrate even with FM clauses

Question 9

James Scott v R & N

Answer 9

Tiger and milk girl

Question 10

Denny, Mott v James B Fraser

Answer 10

‘Reservations’ parties would have made etc are not implied in as terms

Question 11

Ertel Bieber v Rio Tinto on FM clauses

Answer 11

Still frustrate contract even with FM

Question 12

Ertel Bieber v Rio Tinto on legal impossibility

Answer 12

Cannot exclude doctrine of F by express term for subsequent illegality

Question 13

Who gave that the test is that the outcome is something ‘radically different’?

Answer 13

Lord Radcliffe in Davis Contractors v Fareham Urban DC

Question 14

What did the court refuse to recognise in Davis Contractors v Fareham UDC?

Answer 14

Commercial impracticability

Question 15

Fibrosa Spolka v Fairbairn

Answer 15

Illegal due to war

Question 16

Baily v De Crespigny

Answer 16

Acquisition of land by state

Question 17

Metropolitan Water Board v Dick Kerr

Answer 17

Reservoir, ministry; ‘substitute a different contract’

Question 18

Cricklewood Property v Leighton’s Investment

Answer 18

99 years, restriction left 90 so not radically different

Question 19

What are the three sub-categories of physical impossibility?

Answer 19

Death/incapacity, destruction of subject matter and delay/hardship

Question 20

Marshall v Harland

Answer 20

Test for sufficient incapacity: ‘impossible’ or ‘radically different’ performance

Question 21

FC Shepherd v Jerrom

Answer 21

Prison

Question 22

Notcutt v Universal Equipment

Answer 22

Heart-attack; void

Question 23

Phillips v Alhambra

Answer 23

Proprietor died; others could perform

Question 24

Name two cases where subject matter was destroyed

Answer 24

Taylor v Caldwell; Appleby v Myers; Asfar v Blundell; Jackson v The Union Marine

Question 25

Asfar v Blundell

Answer 25

Dates submerged; partial but substantially different

Question 26

Jackson v The Union Marine on destruction of subject

Answer 26

6 months stranded; 'practical commercial destruction'

Question 27

Davis Contractors on delay and hardship

Answer 27

'More onerous' but not of a 'different kind'

Question 28

Jackson v The Union Marine on delay and hardship

Answer 28

Time of the essence; 'with all possible dispatch'

Question 29

The Eugenia

Answer 29

Suez canal

Question 30

Why was the delay not sufficient in The Eugenia?

Answer 30

108 - 128 and not of the essence.

Question 31

Two cases on impossibility of purpose

Answer 31

Krell v Henry; Herne Bay Steamboat v Hutton

Question 32

Krell v Henry

Answer 32

Coronation

Question 33

Herne Bay Steamboat v Hutton

Answer 33

Pleasureboats

Question 34

What are contractual interpretations for in frustration?

Answer 34

To see if either party made provision

Question 35

What are the two ways to interpret provision in contracts for frustration?

Answer 35

Express terms or implied allocation

Question 36

Metropolitan Water Board on express term for F

Answer 36

Delay did not apply as 'so abnormal' it fell outside what parties could have 'possibly contemplated'

Question 37

What case shows implied allocation of risk for F?

Answer 37

WJ Tatem v Gamboa

Question 38

WJ Tatem v Gamboa

Answer 38

Civil war refugee ship

Question 39

What was the implied allocation in WJ Tatem?

Answer 39

Highly foreseeable so allocated to performing party

Question 40

What was frustrating in WJ Tatem?

Answer 40

Length of seizure rather than seizure itself

Question 41

To prove fault in F, who is the onus on?

Answer 41

Onus on C to show D brought it about

Question 42

The Eugenia on fault

Answer 42

Charterers in BoC by entering war zone

Question 43

The SS2

Answer 43

Drilling rig, self-induced

Question 44

Jerrom on anticipatory breach and fault

Answer 44

Person at fault cannot rely on doctrine of F

Question 45

Maritime National v Ocean Trawlers

Answer 45

Five licences

Question 46

Chandler v Webster

Answer 46

Coronation, £100 and £41

Question 47

Fibrosa Spolka v Fairbairn

Answer 47

Occupation; 'total failure of consideration'

Question 48

What was the 'quasi-contractual' claim in Fibrosa?

Answer 48

For unjust enrichment

Question 49

What section is money covered in LR(FC)A?

Answer 49

S.1(2)

Question 50

What section are non-money benefits covered in LR(FC)A?

Answer 50

S.1(3)

Question 51

Lobb v Vasey

Answer 51

Under s.1(2) onus on D to show 'just'

Question 52

Gamerco v ICM/Fair Warning

Answer 52

Guns and roses

Question 53

Which case highlighted three possibilities for deciding expenses under s.1(2)?

Answer 53

Gamerco v ICM/Fair Warning

Question 54

BP Exploration (Libya) v Hunt (No.2)

Answer 54

Oil concession

Question 55

What were the two stages in BP?

Answer 55

What benefit was conferred? £85 mil (end product minus expropriation) Just award to BP in light of expenses? £35 mil (contract price)

Question 56

What case is not solved by s.1(3)?

Answer 56

Appleby v Myers

Question 57

Why is Appleby v Myers not solved by s.1(3)?

Answer 57

'Valuable benefit' = 'end product', but no end product.

Question 58

Who criticised s.1(3) for taking an end-product analysis?

Answer 58

McKendrick, "Frustration, Restitution and Loss Apportionment"

Question 59

What arguments in favour of loss apportionment does McKendrick give?

Answer 59

Economically sounder and 'one of the parties has to suffer loss for which neither is responsible' (Bingham, SS2)

Question 60

Who said 'grave deficiencies' are still there in LR(FC)A?

Answer 60

McKendrick