Frustration Flashcards
Doctrine of Frustration
bring contract to an end, without imposing liability in damages- Hirji Mulji Case- immediate termination
Destruction of subject matter- Yes frustration
Taylor v Caldwell 1863- burned down music hall
Due to illness- yes frustration
Hart v Marshall 1978- dismissal from work
Failure of source- no frustration, but why
NOT frustrated- Blackburn Bobbin v TW Allen 1918- not both parties were aware, not a common assumption
WAR?- yes frustration
Fibrosa v Fairburn 1943- it became illegal to trade with Poland- performance became impossible
Non- occurrence of an event- yes and no frustration
YES- Krell v Henry 1903- event was the main purpose of the agreement
NO- Herne Steamboat 1903- event was not foundation of contract
Multi factorial approach
Posibility of performance, Terms, Nature of Event, Context, Parties knowledge of risk
The Sea Angel 2007- This was a foreseeable risk for the industry
What is not frustration?
generally, when performance is still possible
David Contractors v Fareham Council 1956- ‘not radically different’
Suez Cases 1962- alternative route is available
Foreseeable events, usually do not amount to frustration
The Eugenia 1964- both parties expected the event, even a clause was incorporated
Canary Wharf v EMA 2019- Brexit case
event was not seen as a circumstance preventing the performance
Limits to frustration
Self Induced- The Super Servant Two
Risk was evident- The Sea Angel
and Eugenia case for foreseeability
Differences between statute and common law, regarding financial consequences
At common law- Chandler v Webster 1904- money can’t be recovered, due amount remains payable
Fibrosa case- war- money can be recovered, if there was total failure of performance, obligations are discharged
Force-majeure clauses- if parties have not provided what shall happen in the occurrence of the event, NO FRUSTRATION
Metropolitan Water Board 1918- courts may be slow to interpret clauses, that exclude frustration
