Frustration
Event affecting contractual performance that arises after the
formation of the contract
Circumstance after contract made, contract is impossible to perform
CF. common mistake (event arising prior to contract formation)
Foundation case: Taylor v Caldwell –
Classic early case
Rental of Surrey Music Hall for 4 days to hold ‘grand concerts’
After contracting, but before first performance, Hall was destroyed
by fire
Not fault of either party
No express provision in contract
“That excuse is by law implied, because from the nature of the
contract is is apparent that the parties contracted on the basis of
the continued existence of the particular person or chattel” – An
implied term, not written in contract that if there was fire
the contract would cease but implied- contract ended. –
giving in effect what the parties intended
“We think, therefore, that the Music hall having ceased to exist,
without fault of either party, both party are excused”
The legal basis of frustration:
Is the doctrine an example of an implied term?
Or is It an independent rule of law, and not based on what the
parties presumably intended?
- James Scott & Sons Ltd v Del Sel – "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."- fact that they didn’t see the risk is not
important- just whether it is a sufficiently serious situation to not
write it down.
- Davis Contractors v Fareham UDC-
Contract to build 78 houses in 8 months
Lack of skilled labour. Took 22 months to complete
Detailed consideration of legal basis for intervention
They said the contract must have been frustrated as they have
reasonable excuse.
“the true action of the court which consists in applying an
objective rule of the law of contract to the contractual
obligations that the parties have imposed on themselves” –
as an independent rule of law, was this a sufficiently significant
interference – objective test
“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
Event affecting contractual performance that arises after the
formation of the contract
Circumstance after contract made, contract is impossible to perform
CF. common mistake (event arising prior to contract formation)
Foundation case: Taylor v Caldwell –
Classic early case
Rental of Surrey Music Hall for 4 days to hold ‘grand concerts’
After contracting, but before first performance, Hall was destroyed
by fire
Not fault of either party
No express provision in contract
“That excuse is by law implied, because from the nature of the
contract is is apparent that the parties contracted on the basis of
the continued existence of the particular person or chattel” – An
implied term, not written in contract that if there was fire
the contract would cease but implied- contract ended. –
giving in effect what the parties intended
“We think, therefore, that the Music hall having ceased to exist,
without fault of either party, both party are excused”
The legal basis of frustration:
Is the doctrine an example of an implied term?
Or is It an independent rule of law, and not based on what the
parties presumably intended?
- James Scott & Sons Ltd v Del Sel – "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."- fact that they didn’t see the risk is not
important- just whether it is a sufficiently serious situation to not
write it down.
- Davis Contractors v Fareham UDC-
Contract to build 78 houses in 8 months
Lack of skilled labour. Took 22 months to complete
Detailed consideration of legal basis for intervention
They said the contract must have been frustrated as they have
reasonable excuse.
“the true action of the court which consists in applying an
objective rule of the law of contract to the contractual
obligations that the parties have imposed on themselves” –
as an independent rule of law, was this a sufficiently significant
interference – objective test
“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
