Frustration
When frustrating event takes place before the sale
s.6: “Where there is a contract for the sale of specific goods and the
goods without the knowledge of the seller have perished at the time when
the contract is made, the contract is void.”:
BUT
Atiyah’s argument:
s.55 – says can expressly exclude implied terms. Since
these are implied terms, can contract out of them, even
though this not mentioned in s.6 and s.7.
McRae – court found could contract out of them, although
Australian case. Non-existent tanker.
1. specific goods
s.61(1) – defines specific goods.
Unascertained goods - Intertradex SA – can’t be
void for perishing, expected to get your goods from
elsewhere.
Quasi-specific goods – Howell -
200 tons of potatoes to be grown
on a particular field. Crop failed,
only 80, not obliged to deliver the 80, void.
2. Perished
Sainsbury - agreed to sell 275 tonnes of
barley. Actual crop only came to 140.
Under obligation to give buyer what they
had but not liable for damages, nothing
actually perished as never existed.
Asfar – dates damaged so not fit for human consumption
but could be used for fermentation. Had perished because
nature of the thing had been altered so that no longer
commercially viable. But criticised as not looking at
whether physically perished which is what act provides for.
When frustrating event takes place before the sale
s.6: “Where there is a contract for the sale of specific goods and the
goods without the knowledge of the seller have perished at the time when
the contract is made, the contract is void.”:
BUT
Atiyah’s argument:
s.55 – says can expressly exclude implied terms. Since
these are implied terms, can contract out of them, even
though this not mentioned in s.6 and s.7.
McRae – court found could contract out of them, although
Australian case. Non-existent tanker.
1. specific goods
s.61(1) – defines specific goods.
Unascertained goods - Intertradex SA – can’t be
void for perishing, expected to get your goods from
elsewhere.
Quasi-specific goods – Howell -
200 tons of potatoes to be grown
on a particular field. Crop failed,
only 80, not obliged to deliver the 80, void.
2. Perished
Sainsbury - agreed to sell 275 tonnes of
barley. Actual crop only came to 140.
Under obligation to give buyer what they
had but not liable for damages, nothing
actually perished as never existed.
Asfar – dates damaged so not fit for human consumption
but could be used for fermentation. Had perished because
nature of the thing had been altered so that no longer
commercially viable. But criticised as not looking at
whether physically perished which is what act provides for.
