Frustration Flashcards
Walton Harvey v Walker (1931)
A entered into a contract to advertise outside B’s hotel for 7 years. The council then gained ownership. It was held this was not frustrated as A knew there was a risk of compulsory acquisition from the council, and as A foresaw this A was liable for damages.
Davis Contractors v Fareham (1956) HL
“Frustration occurs whenever the law recognises that without [the fault] of either party a contractual obligation has become incapable of being performed because the circumstances in which performance is called for would render it a thing radically different from that which was undertaken by the contract” per Lord Radcliffe
(Non haec in foedera veni - it was not this that I promised to do)
Amalgamated Investment (1977)
Property was sold for £1.7million and was advertised as suitable for renovation. The day after the sale the building became listed. This would be in the jurisdiction of frustration as the supervening even happened after the contract. On the facts of this it was not satisfied.
Paradine v Jane (1647)
Traditionally not frustration, obligations of a contract are absolute and literal.
Taylor v Caldwell (1863)
General principles of frustration begin…
Fire was without the either party, so their obligations were discharged as the contract was rendered impossible.
The Sea Angel (2007)
Multi-factorial approach:
- Matrix/context
- The parties’ knowledge, expectations, assumptions and contemplations (particularly to risk)
- At the time of the contract
- The nature of the supervening event
- The parties’ reasonable and objectively ascertainable calculations as to the possibility of future performance
(Rix LJ)
The Super Servant Two (1990) CA
- The doctrine of frustration mitigates the rigour of the common law’s insistence on literal performance of absolute promises: the objective is to gain a fair, just and reasonable result to escape injustice
- The doctrine should not be lightly invoked as it kills the contract
- Brings the contract to and end
- Should not be due to the act or election of the party seeking to rely on it
- Must take place without blame or fault on the side of the party seeking to rely on it.
Concerned self-induced frustration. The commercial arrangements of their contracts did not make the contract frustrated. Commercial policy reasons made this fair.
Denny Mott & Dickinson v Fraser (1944)
A war time control order meant that the agreement to purchase the timber yard was void.
Marshall v Harland & Wolff (1972)
When an employee’s incapacity due to illness is of such a nature and is likely to continue for such a period that further performance of his or her obligations under that contract becomes either impossible or radically different from that undertaken.
Appleby v Myers (1867)
Because no work was due to be paid until all the work was completed, when the contract was void they were given no remedy. This would be different under the 1943 Act.
Jackson v Union Marine (1874)
A ship was chartered but the contract was frustrated when damaged caused a 7 month delay as this would be a totally different venture from that which was contemplated. The parties both understood it would arrive at Newport within a reasonable time.
Krell v Henry (1903) CA
Borrowed flat to watch coronation was frustrated as had completely lost the commercial object of the contract. It was not literally written in the contract but there was a common assumption which ceased to exist.
Herne Bay v Hutton (1903) CA
This contract concerning shipping was not frustrated. It was distinguished as the fleet was still anchored so all commercial object was not lost.
Tatem v Gamboa (1939)
The contract was frustrated when enemy forces detained the ship despite there being an obvious risk.
The Eugenia (1964)
There was no frustration as an alternative route could be taken, but there is a suggestion that the contract would be frustrated if there had been a specific delivery date or if the goods where perishable.
