This issue has become controversial in contract law, as the approach to a clause is implied only when it is necessary or reasonable. In addition, there is some confusion as to whether the term was implicit in facts or laws. Contract non-performance is often referred to as goal frustration. Often, the conclusion that a particular contract has been thwarted (or not) can be determined almost entirely by what a judge or arbitrator considers to be the commercial significance of the event they invoke as frustrating for the contract. The High Court ruled that the contract had been circumvented. The decisive factor in determining whether the situation arising from the adoption of the interim order was fundamentally different from the situation envisaged by the treaty as to its concrete interpretation in the light of the circumstances surrounding it. In the present case, the injunction created a situation in which the work ordered could only be performed in a manner fundamentally different from that provided for in the contract. Obviously, the contract did not provide for any injunction against the construction company. In addition, it was expected that the service would be terminated at some point.
The primordial event, the injunction, made such a service impossible. A good example of this is the famous case of Tsakiroglou & Co Ltd v. Noblee Thorl. The defendant was ordered to ship peanuts to Hamburg. They had originally planned to take it through the Suez Canal, but it was closed due to military operations by British and French forces against Egypt. Various situations may require the application of contractual disappointment, but case law shows that there are special circumstances in which the doctrine is applied. Despite the difficulty of identifying non-performance of a contract, drafting contracts broad enough to apply to new situations or circumstances can help parties who want to avoid a contract being seen as frustrated. For example, force majeure clauses are used in contracts to avoid frustration. These are clauses that suspend performance in the event of preponderant events that are not the fault of one of the parties, but maintain the existence of the contract. In order to avoid a contract being frustrated, the parties should share the risks as much as possible. Frustration is an English doctrine of contract law that serves as a means of voiding contracts when an unforeseen event makes contractual obligations impossible or radically alters the main purpose of the party to conclude the contract.
Historically, there was no way to nullify an impossible treaty after its entry into force; It was not until 1863, and in Taylor v. Caldwell,[1] that the beginnings of the doctrine of frustration have been established. Although the doctrine has been expanded from the beginning,[2] it is still strictly applicable; [3] Lord Roskill stated that “it is not frivolous to exempt the parties from the normal consequences of a reckless operation”. [4] These differences may explain why no Canadian cases of pandemic frustration have been reported to date. Nevertheless, it is beneficial for affected individuals and businesses to know their legal options, which can at least help them in their negotiations on contract changes. Force majeure means “force majeure” in French and refers to an unforeseeable event that makes it impossible to perform the contract. A force majeure clause in a contract is intended to overcome the limited application of the doctrine of impediment by determining what should happen if a particular event interferes with the performance of the contract. The clause should define what constitutes a “force majeure” event by providing an exhaustive list including wars, riots and certain weather events, or by using a general description such as “an event beyond the reasonable control of the parties”. If an object or building that is essential to the contract – and that has been expressly identified – is destroyed through no fault of either party, it may be cancelled as intolerable, as stated in Taylor v Caldwell. However, these principles differ when it comes to the sale of goods. The agreement between the parties is important when it comes to examining whether they have been frustrated. [18] Where it is agreed that the goods will be supplied from a particular source, the contract falls within section 7 of the Sale of Goods Act 1979:[19] “Very rarely, after the contract has been lawfully concluded and it has come into service, there may be an intermediate event or a change of circumstances so catastrophic or fundamental that the contract is prematurely determined by the application of the doctrine of impediment.” It was not until 1903, in Krell vs.
Henry, that the doctrine has been called the frustration of the contract. In this case, the focus is on the rental of an apartment in London by plaintiff Krell to defendant C.S. Henry. Henry had planned to see a procession of kings from the apartment. The procession was eventually cancelled and Henry refused to pay Krell the balance of the lease. Henry was excused by the performance after the court argued that the basis of the contract was the procession, which frustrated the contact. Non-performance of the contract may also occur if the object of the contract is destroyed, for example during a flood or fire. The parties may seek some relief for a frustrated contract as part of the refund.
Restitution claims do not arise from contract or tort, but protect the parties against unjust enrichment at their expense. In the context of frustrated contracts, this may be the case if one party has paid a down payment to the other party in return for the performance of the contract. Early cases such as Paradine v. Jane[5] show the historical line taken by the courts in achieving a treaty objective; In this case, the courts concluded that if the defendant had been raided on land leased by royalist forces, he was still obliged to pay rent to the landowner. [6] It is only with Taylor v. Caldwell that a doctrine of frustration has been officially recognized, mitigating the potential harshness of previous decisions. [7] In this case, two parties entered into a contract to lease a music hall for the holding of concerts. After the conclusion of the contract, but before the rental dates, the music hall burned down. It was established that the contract could not be performed; [2] Blackburn J. stated that the absolute liability established in Paradine v. Jane would not apply in this case because there was an implied condition that the Music Hall would exist at the time of the scheduled concerts.
[2] As a result, the parties were released from the contract. The implicit criterion of the term was explained by Lord Loreburn: There are many ways to terminate a contract. If the performance of a contract is affected by an event beyond the control of the parties, it is important that the parties know what their responsibilities are. The classic test of frustration comes from England, Davis Contractors Limited v Fareham Urban District Council [1956] AC 969. This English case was used in the main Australian case Frustration (which also concerned a construction contract) Codelfa Construction Pty Limited v SRA of New South Wales (1982) 149 CLR 337. The doctrine of frustration states that frustration occurs when an unforeseen event renders the performance of a contract impossible or fundamentally different from that originally envisaged by the parties. Neither party will be considered guilty. A contract is not perceived as frustrated when one party makes a bad deal or faces difficulties, inconveniences or material losses. A contract can become frustrated when a person or group under contract is not available (due to death, illness or unavailability). This generally only applies to the provision of personal services[24] and not to general commercial services such as construction work, which could be provided by many people.
[2] Robinson v Davison[25] concerned a pianist who fell ill before a concert for which he had been hired; The contract was seen as frustrated. A similar result can be seen in Condor v The Baron Knights. [26] A frustrating event is one that fundamentally distinguishes the performance of the contract from what the parties had foreseen when they entered into the contract.
