Frustration of contracts: a quick and simple guide
Discussion
Frustration of contracts is one of the bits that people do near the end of the course, when the studes are looking out of the window and thinking of the summer. Hell, it hardly ever happens in real life, yeah? How many frustration cases have I advised on or argued in the last thirty years? Er...., maybe two?
But, cometh the hour, cometh the rarely invoked legal doctrine; so here is Frustration 101.
In the English law of contract, frustration occurs when the performance of the contract is rendered impossible by some event or circumstance that is outside the control of all parties to the contract. Note the word impossible. Not inconvenient, not difficult, not disadvantageous. Not "this is a s
tty deal". Note also that none of the parties must have had any hand in the event said to give rise to frustration.
Another way to put the concept is that the contract can no longer achieve the purpose for which it was made.
Lord Reid, a major jurist of the 1950s to the 1970s, put it this way: "The question is whether the contract which they did make is, on its true construction, wide enough to apply to the new situation: if it is not, then it is at an end,"
Famous examples: King Edward VII is due to be crowned on 26 June 1902. He falls ill (not the usual hangover this time). Coronation postponed to 9 August. Litigation ensues. For example, some bloke has rented a flat with a view of the parade route (yeah, what a saddo, but hey). The Court finds the contract for the rental to have been frustrated. Some other bloke has chartered a boat to cruise around and see the mighty fleet of the Royal Navy assembled for the review at Spithead (what a sight that must have been in 1902 - screw all that King bks, ginormo grey warships are cooooooool). The Court says, tough shizzle, you can still go for a cruise.
This sort of stuff looks likely to become relevant again this year. Because reasons.
I might (I said might) be willing to have a go at answering some (I said some) questions about current scenarios, and maybe some of the other resident lawyers will feel like chipping in also. Remember, as always, that the witterings of some made up person who likes to perv over cars on the internet are no substitute for case-specific advice from someone who is insured to give that advice, and owes you an individual duty of care. IAAL* but IANYL, and all that.
* Or so I say. I might just be some random on the internet. Who knows?
But, cometh the hour, cometh the rarely invoked legal doctrine; so here is Frustration 101.
In the English law of contract, frustration occurs when the performance of the contract is rendered impossible by some event or circumstance that is outside the control of all parties to the contract. Note the word impossible. Not inconvenient, not difficult, not disadvantageous. Not "this is a s
tty deal". Note also that none of the parties must have had any hand in the event said to give rise to frustration. Another way to put the concept is that the contract can no longer achieve the purpose for which it was made.
Lord Reid, a major jurist of the 1950s to the 1970s, put it this way: "The question is whether the contract which they did make is, on its true construction, wide enough to apply to the new situation: if it is not, then it is at an end,"
Famous examples: King Edward VII is due to be crowned on 26 June 1902. He falls ill (not the usual hangover this time). Coronation postponed to 9 August. Litigation ensues. For example, some bloke has rented a flat with a view of the parade route (yeah, what a saddo, but hey). The Court finds the contract for the rental to have been frustrated. Some other bloke has chartered a boat to cruise around and see the mighty fleet of the Royal Navy assembled for the review at Spithead (what a sight that must have been in 1902 - screw all that King b
ks, ginormo grey warships are cooooooool). The Court says, tough shizzle, you can still go for a cruise.This sort of stuff looks likely to become relevant again this year. Because reasons.
I might (I said might) be willing to have a go at answering some (I said some) questions about current scenarios, and maybe some of the other resident lawyers will feel like chipping in also. Remember, as always, that the witterings of some made up person who likes to perv over cars on the internet are no substitute for case-specific advice from someone who is insured to give that advice, and owes you an individual duty of care. IAAL* but IANYL, and all that.
* Or so I say. I might just be some random on the internet. Who knows?
May I?
I suspect there may be a number of cancelled holidays and associated arrangements ahead...
Simple one to start,
holiday in USA 1st week April we are now unable to take.
Home boarding booked with local dog walker.
Cancellation policy says full amount payable if cancelled within 3 weeks. (We are now within this time).
Initially we elected to still send dog for 1 week.
Now with lockdown, travelling to take dog to dog walker is not essential, and therefore impossible (?).
Contract frustrated? Or full amount payable?
(We've paid 50% already (£200), and will pay the balance when requested, given it is not her fault and she claims to be still 'open for business').
ETA, in your examples above, what's the difference between the flat and the ship hire? The bloke can still have a weekend in the flat, sit on the balcony and watch the world go by.
Or was watching the Coronation parade written in as an essential part of the contract?
ETA again, it appears the viewing of the Coronation was indeed written in to, and provable as fundamental to this contract.
I suspect there may be a number of cancelled holidays and associated arrangements ahead...
Simple one to start,
holiday in USA 1st week April we are now unable to take.
Home boarding booked with local dog walker.
Cancellation policy says full amount payable if cancelled within 3 weeks. (We are now within this time).
Initially we elected to still send dog for 1 week.
Now with lockdown, travelling to take dog to dog walker is not essential, and therefore impossible (?).
Contract frustrated? Or full amount payable?
(We've paid 50% already (£200), and will pay the balance when requested, given it is not her fault and she claims to be still 'open for business').
ETA, in your examples above, what's the difference between the flat and the ship hire? The bloke can still have a weekend in the flat, sit on the balcony and watch the world go by.
Or was watching the Coronation parade written in as an essential part of the contract?
ETA again, it appears the viewing of the Coronation was indeed written in to, and provable as fundamental to this contract.
Edited by Chester draws on Tuesday 24th March 20:24
Apols if I've misunderstood the whole concept, but I'm wondering about a holiday cottage we've booked.
First week of May, in the Lake District, and we're in leafy Hampshire.
Boris & Co. say we can't travel there. Cottage company say "no refund, sorry, you booked and paid in full within 70 days of the holiday".
Is this an example of frustration of contract? If so, can we request a refund?
Thanks in advance.
First week of May, in the Lake District, and we're in leafy Hampshire.
Boris & Co. say we can't travel there. Cottage company say "no refund, sorry, you booked and paid in full within 70 days of the holiday".
Is this an example of frustration of contract? If so, can we request a refund?
Thanks in advance.
What about car leases? For example the lease company are due to collect, but they can't because next week it suddenly becomes illegal to make a journey for that purpose. Is the lessee required to continue making lease payments for the car beyond the original contract term? If not can they still use the car or just leave it in the street? What about insuring it?
jamei303 said:
What about car leases? For example the lease company are due to collect, but they can't because next week it suddenly becomes illegal to make a journey for that purpose. Is the lessee required to continue making lease payments for the car beyond the original contract term? If not can they still use the car or just leave it in the street? What about insuring it?
IANALyou wont need to make payments and should consider the car out of use, park it up and make it available for collection.
Where it would get interesting is liability and insurance, I'd take detailed pictures to show its condition date/timestamped just in case something happens to it from the day your contract ends. If you have somewhere off road to store it then that might make the most sense, allow them to declare it off road for tax and insurance purposes.
As a fan of a different club to Liverpool this one is a burning issue, it even has its own thread elsewhere.
What is the position with the football leagues? Specifically if the season was voided by the Football Association, or whoever ultimately controls it. Would it fall under this and thus negate any claims.
There are lots of player / TV / hospitality / general employment contracts etc that are all linked to clubs completing a full season.
What is the position with the football leagues? Specifically if the season was voided by the Football Association, or whoever ultimately controls it. Would it fall under this and thus negate any claims.
There are lots of player / TV / hospitality / general employment contracts etc that are all linked to clubs completing a full season.
La Liga said:
There's a topic about weddings, so would be interested to know if they could fall in to it.
I assume that you do not mean the contract of matrimony itself. That is no longer a contract enforceable by legal action. Contracts for venue hire, catering, cars, flowers, and so on, may be frustrated.Chester draws said:
May I?
I suspect there may be a number of cancelled holidays and associated arrangements ahead...
Simple one to start,
holiday in USA 1st week April we are now unable to take.
Home boarding booked with local dog walker.
Cancellation policy says full amount payable if cancelled within 3 weeks. (We are now within this time).
Initially we elected to still send dog for 1 week.
Now with lockdown, travelling to take dog to dog walker is not essential, and therefore impossible (?).
Contract frustrated? Or full amount payable?
(We've paid 50% already (£200), and will pay the balance when requested, given it is not her fault and she claims to be still 'open for business').
ETA, in your examples above, what's the difference between the flat and the ship hire? The bloke can still have a weekend in the flat, sit on the balcony and watch the world go by.
Or was watching the Coronation parade written in as an essential part of the contract?
ETA again, it appears the viewing of the Coronation was indeed written in to, and provable as fundamental to this contract.
Watching the Coronation was treated as the purpose of the flat rental, although IIRC that was not expressed in writing. The case may have been wrongly decided.I suspect there may be a number of cancelled holidays and associated arrangements ahead...
Simple one to start,
holiday in USA 1st week April we are now unable to take.
Home boarding booked with local dog walker.
Cancellation policy says full amount payable if cancelled within 3 weeks. (We are now within this time).
Initially we elected to still send dog for 1 week.
Now with lockdown, travelling to take dog to dog walker is not essential, and therefore impossible (?).
Contract frustrated? Or full amount payable?
(We've paid 50% already (£200), and will pay the balance when requested, given it is not her fault and she claims to be still 'open for business').
ETA, in your examples above, what's the difference between the flat and the ship hire? The bloke can still have a weekend in the flat, sit on the balcony and watch the world go by.
Or was watching the Coronation parade written in as an essential part of the contract?
ETA again, it appears the viewing of the Coronation was indeed written in to, and provable as fundamental to this contract.
Edited by Chester draws on Tuesday 24th March 20:24
Frustration of your two cases (hotel and dog walker) is not as clear cut. Purposes of the contracts are (1) holiday accommodation, and (2) holiday facilitation. (1) may be deferrable. (2) could be said to be linked to a particular time, but again could be deferrable. Negotiate!
Edited by anonymous-user on Thursday 26th March 09:08
Brave Fart said:
Apols if I've misunderstood the whole concept, but I'm wondering about a holiday cottage we've booked.
First week of May, in the Lake District, and we're in leafy Hampshire.
Boris & Co. say we can't travel there. Cottage company say "no refund, sorry, you booked and paid in full within 70 days of the holiday".
Is this an example of frustration of contract? If so, can we request a refund?
Thanks in advance.
I am inclined to say frustration on this one. You booked a specific time slot. But maybe negotiate to have same week next year?First week of May, in the Lake District, and we're in leafy Hampshire.
Boris & Co. say we can't travel there. Cottage company say "no refund, sorry, you booked and paid in full within 70 days of the holiday".
Is this an example of frustration of contract? If so, can we request a refund?
Thanks in advance.
jamei303 said:
What about car leases? For example the lease company are due to collect, but they can't because next week it suddenly becomes illegal to make a journey for that purpose. Is the lessee required to continue making lease payments for the car beyond the original contract term? If not can they still use the car or just leave it in the street? What about insuring it?
Not a frustration case at all. If the lease is coming to an end you can't be compelled by the supervening events to carry on the lease. You may become what is called an involuntary bailee of the car. You have to take reasonable care of it until the owner can come and get it. unident said:
As a fan of a different club to Liverpool this one is a burning issue, it even has its own thread elsewhere.
What is the position with the football leagues? Specifically if the season was voided by the Football Association, or whoever ultimately controls it. Would it fall under this and thus negate any claims.
There are lots of player / TV / hospitality / general employment contracts etc that are all linked to clubs completing a full season.
What is the position? (1) Complicated! (2) It Depends!What is the position with the football leagues? Specifically if the season was voided by the Football Association, or whoever ultimately controls it. Would it fall under this and thus negate any claims.
There are lots of player / TV / hospitality / general employment contracts etc that are all linked to clubs completing a full season.
Vulture (small) capitalism: I hope for some real life paid cases from all that stuff!
Here's my post from the weddings and Covid-19 thread.
Due to get married in June, and the current situations mean this more than likely won't happen, social distancing, no bars/restaurants etc etc.
I approached our wedding venue today to ask about postponing, rather than cancelling, due to the current situation. Their reply is that of course I can postpone....but the full balance will still be due two weeks before the date of the original wedding.
Now this doesn't sit quite right with me, If i'm to pay the remainder (50%) of the balance at the end of May and postpone the wedding until, say December, they will hold a substantial amount of money through what is rather an uncertain time.
A line from the contact '14 days prior to the event, the Hotel requires the outstanding balance to be paid in full. Up until this time, the original pro-forma invoice can be amended if and when the details change'
It's worth noting the venue is now closed until further notice (due to Gov guidelines)
I guess the end goal is I'd rather have our money back now and re book with them at our leisure when things are a bit more certain.
Due to get married in June, and the current situations mean this more than likely won't happen, social distancing, no bars/restaurants etc etc.
I approached our wedding venue today to ask about postponing, rather than cancelling, due to the current situation. Their reply is that of course I can postpone....but the full balance will still be due two weeks before the date of the original wedding.
Now this doesn't sit quite right with me, If i'm to pay the remainder (50%) of the balance at the end of May and postpone the wedding until, say December, they will hold a substantial amount of money through what is rather an uncertain time.
A line from the contact '14 days prior to the event, the Hotel requires the outstanding balance to be paid in full. Up until this time, the original pro-forma invoice can be amended if and when the details change'
It's worth noting the venue is now closed until further notice (due to Gov guidelines)
I guess the end goal is I'd rather have our money back now and re book with them at our leisure when things are a bit more certain.
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