Frustration

Question 1

Definition of frustration

Answer 1

Davis Contractors v Fareham

Without default of either party, a contractual obligation has become incapable of being performed because the circumstances in which performance is called for would render a thing radically different from that which was undertaken by the contract

Question 2

Frustration is raised as a defence to breach of contract

Answer 2

Taylor v Caldwell

Question 3

Impossibility - Subject matter (music hall) destroyed

Answer 3

Taylor v Caldwell

Question 4

Impossibility - destruction of something essential for the performance of the contract, that is not the subject matter

Answer 4

Appleby v Myers

Question 5

Musician ill - frustration

Answer 5

Condor v The Barron Knights

Robinson v Davison

Question 6

Musician called up for military service - frustration

Answer 6

Morgan v Manser

Question 7

Unavailability may discharge a contract

Answer 7

Does interruption make performance radically different?

Question 8

Bank Line v Arthur Capel

Answer 8

ship requisitioned for 5 months out of a year contract - frustration

Question 9

Jackson v Union Marine Insurance

Answer 9

Ship ran aground after one day and not ready for 8 months - frustration

Question 10

Tamplin v Anglo-Mexican Petroleum

Answer 10

Ship requisitioned in 1915, 3 years into a 5 year charter party (2 years left) as courts thought war would end soon

Question 11

The Sea Angel

Answer 11

Work had already been accomplished, even though time was left in the charter party - purpose achieved so no frustration

Question 12

Illegality - war

Answer 12

Avery v Bowden

Question 13

“It is plain that a contract to do what has become illegal cannot become legally enforceable”

Answer 13

Denny, Mott & Dickson v Fraser

Question 14

Government order to stop work and sell plant

Answer 14

Dick Kerr v Metropolitan Water Board.

Question 15

Common purpose - contract may be frustrated even though it is still physically possible to carry out the contract

Answer 15

Krell v Henry

1) What was foundation of contract?
2) Was performance of the contract prevented?
3) Was the event preventing performance unforeseeable at time of contracting?

Question 16

There must be absolute non-occurrence of the event which is the common purpose. If some part of the contract remains possible to perform, it will not be frustrated

Answer 16

Herne Bay Steamboat v Hutton

Question 17

Frustration must be applied narrowly

Answer 17

Noblee Thorl; The Nema

Question 18

Contract will not be frustrated by an event that leaves it possible to perform but makes it much more onerous/expensive for one party

Answer 18

Davis Contractors v Fareham

Amalgamated Investment v John Walker

Question 19

Self-induced frustration will no be allowed. Burden on party claiming it is self-induced

Answer 19

Joseph Constantine v Imperial Smelting - illegal act to prima donna

Question 20

Party hiring trawler failed to apply for licence = self-induced frustration

Answer 20

Maritime National Fish v Ocean Trawler

Question 21

Frustration will not apply if parties have foreseen the event but failed to make provision for it in contract

Answer 21

Walton Harvey v Walker & Homfrays

Question 22

Even events covered in the contract may be frustrated if the supervening event goes beyond the risk assumed under the contract and renders performance radically difference from that contracted for

Answer 22

The Sea Angel

Question 23

Frustration of leases

Answer 23

Originally not possible - Cricklewood v Leighton’s

National Carriers v Panalpina - frustration of a lease is possible, but will be rare

Question 24

Effects of frustration at common law

Answer 24

Krell v Henry - rights accrued before the frustrating event are enforceable, but no liability arises for obligations that would otherwise have accrued after the frustrating event took place

Question 25

Effects of frustration at common law where total lack of consideration

Answer 25

Fibrosa - money paid could be recovered and money due and payable need not be paid

Question 26

Effects of frustration at common law where there is partial consideration

Answer 26

Money paid prior to frustrating event is lost and money due is payable

Question 27

Court has broad discretion in determining expenses incurred for LR(FC)A 1943

Answer 27

Gamerco v ICM

Question 28

Where the value of the benefit has been reduced to nil by the frustrating event, the provider of the benefit has no claim under s1(3)

Answer 28

BP Exploration v Hunt