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DR PRINCE SAPRAI
FRUSTRATION
General Reading: E McKendrick, Contract Law: Text, Cases and Materials (7th edn OUP,
Oxford 2016), ch 21
Mindy Chen-Wishart, Contract Law, (5th edn Oxford University Press, 2015), ch 7
Learning Outcomes:
Appreciate the distinction between frustration and mistake
Understand the history and theoretical underpinnings of frustration
Know the three main categories of frustrating event: legal, physical and impossibility of
purpose
Appreciate implications of contractual allocation of risk and fault for frustration
Understand the consequences of frustration and in particular how the Law Reform
(Frustrated Contracts) Act 1943 applies to partially executed contracts
James Scott & Sons Ltd v R & N Del Sel 1922 SC 592
‘[a] tiger has escaped from a travelling menagerie. The milkgirl fails to deliver the milk.
Possibly the milkman may be exonerated from any breach of contract; but, even so, it would
seem hardly reasonable to base that exoneration on the ground that “tiger days excepted” must
be held as if written into the milk contract’.
3.2 Radical Change
Davis Contractors v Fareham Urban District Council [1956] AC 696
‘Frustration occurs whenever the law recognises that 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 it a thing radically different from that which was
undertaken by the contract’.
4 Frustrating Events
4.1 Overlapping Categories
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Davis Contractors v Fareham Urban District Council [1956] AC 696 (‘any new and unforeseeable
factor or event’?)
‘the delay was greater in degree than was to be expected. It was not caused by any new and
unforeseeable factor or event: the job proved to be more onerous but it never became a job of a
different kind from that contemplated in the contract’.
Jackson v The Union Marine Insurance Co Ltd (1874-75) LR 10 CP
Ocean Tramp Tankers Corp v V/O Sovfracht (The Eugenia) [1964] 2 QB 226 (cargo not affected by
delay and ‘no evidence that the early arrival of the cargo in India was of particular importance’)
4.4 Impossibility of Purpose
Krell v Henry [1903] 2 KB 740 (must be common purpose; ‘assumed by the parties to be the
foundation or basis of the contract’)
‘the cab had no special qualifications for the purpose which led to the selection of the cab for
this particular occasion. Any other cab would have done as well’.
Herne Bay Steamboat Co v Hutton [1903] 2 KB 683
‘Just as in the case of the hire of a cab or other vehicle, although the object of the hirer might
be stated, that statement would not make the object any the less a matter for the hirer alone, and
would not directly affect the person who was letting out the vehicle for hire’.
5 Contractual Interpretation
5.1 Express Terms
Metropolitan Water Board v Dick Kerr & Co Ltd [1918] AC 119 (delay clause not apply because
‘delay was so abnormal, so pre-emptive, as to fall outside what the parties could possibly have
contemplated’)
5.2 Implied Allocation of Risk: Highly Foreseeable?
WJ Tatem Ltd v Gamboa [1939] 1 KB 132
6 Fault
6.1 Breach
Ocean Tramp Tankers Corp v V/O Sovfracht (The Eugenia) [1964] 2 QB 226
6.2 Anticipatory Brach
J Lauritzen A/S v Wijsmuller BV (The Super Servant Two) [1990] 1 Lloyd’s Rep 1
‘The possible varieties are infinite, and can range from the criminality of the scuttler who opens
the sea cocks and sinks his ship, to the thoughtlessness of the prima donna who sits in a draught
and loses her voice’.
FC Shepherd & Co v Jerrom [1987] QB 301
6.3 Election
Maritime National Fish Ltd v Ocean Trawlers Ltd [1935] AC 524
J Lauritzen A/S v Wijsmuller BV (The Super Servant Two) [1990] 1 Lloyd’s Rep 1
7 Consequences of Frustration
7.1 Contract Discharged
7.2 Partially Executed Contracts
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