FRUSTRATION Flashcards
unforeseen circumstances or consequences
what is frustration?
when unforeseen contingencies beyond the parties control prevent performance.
5 ways frustration can occur
- destruction of subject matter
- contract becomes illegal to perform
- government or local authority intervention
- commercial purpose has been destroyed
- death / non-availability
DESTRUCTION OF SUBJECT MATTER
IMPOSSIBILITY OF PERFORMANCE
(TAYLOR V CALDWELL)
CONTRACT BECOMES ILLEGAL TO PERFORM
SUPERVENING ILLEGALITY
(AVERY V BOWDEN)
GOV/ LOCAL AUTHORITY INTERVENTION
(METROPOLITAN WATER BOARD V DICK KERR)
COMMERCIAL PURPOSE HAS BEEN DESTROYED
when there is a change of circumstances making performance pointless.
(KRELL V HENRY)
However, the contract must be deprived of the whole commercial purpose to amount to frustration
(HERNE BAY STEAM V HUTTON)
DEATH OR NON-AVAILABILITY
(WHINCUP V HUGHES)
LIMITATIONS ON THE DOCTRINE OF FRUSTRATION
- CONTRACTUAL PROVISION
- INCONVENIENCE OR ADDITIONAL EXPENSE
- FORESEEN OR REASONABLY FORESEABLE CIRCUMSTANCES
- SELF-INDUCED BREACH
CONTRACTUAL PROVISION
where there is a force majeure clause that has anticipated the actual frustration that has occurred
(Jackson v The Union Marine Insurance )
INCONVENIENCE OR ADDITIONAL EXPENSE
Frustration occurs when performance requires sth radically different from what is undertaken
not enough to argue that performance has become even extremely difficult or more expensive.
(DAVIES CONTRACTORS V FAREHAM UDC)
(TSAKIROGLOU & CO LTD V NOBLEE AND THORT)
FORESEEN OR FORESSEABLE CIRCUMSTANCES
(WALTON HARVEY V WALKER AND HOMFRAYS)
SELF-INDUCED BREACH
onus of proof is on party claiming self-induced breach
(maritime national fish v ocean trawlers)
COMMON LAW EFFECT OF FRUSTRATION
historically, contract was discharged form moment of frustrating event and losses lay where they fell.
- meaning that money paid before frustrating even was unrecoverable
- money due before the frustrating event had to be paid
- money due after frustrating event had to be payable
