Effects Of Frustration In Common Law

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“The doctrine of frustration has evolved to mitigate the hardship of the common law’s insistence on the literal performance of absolute promises”. This statement of LJ Birmimingham, encapsulated the prior stance of common law, the effect of frustration and its scope. The courts were rigid in their views and there was no excuse for a breach of contract but frustration absolved a party in case of breach due to supervening events leading to significant change in circumstances. Although it would seem to appear that frustration occurs under a set of specific conditions, but in reality, there is no clear list of such conditions, and, frustration has more or less developed on a case by case basis. This can be seen from the cases that follow. Before…show more content…
This approach is best illustrated by the case Paradine v Jane. Here, it was held that where a contract assumed a duty, it was to be performed notwithstanding “any accident by inevitable necessity” . In this case, the defendant was not excused from paying rent even though he was ousted from the land by the King. Following this case, a similar reasoning was applied in subsequent cases. In Hills v. Sughrue, a case decided nearly two hundred years after Paradine, a ship-owner who had agreed to a contract for loading his ship with guano at a certain place in West Africa, was held liable for damages notwithstanding the fact that guano had become unobtainable…show more content…
The first traces of the doctrine of frustration can be seen from the case of Taylor v Cadwell. “The above case and the judgment rendered therein supposedly laid down the foundation for the modern rule in the English law.” According to Blackburn LJ, “a positive unconditional contract can’t be frustrated even after it becomes impossible. But in this case, Blackburn LJ was of the opinion that this was a conditional positive contract, the condition being the existence of the music hall, thus, invoking the doctrine of frustration to relieve the parties of their respective duties. This case shows that the technique of implication of a term, originally used to justify the setting aside of a contract, was deviated from in subsequent cases.” There was a shift in emphasis, which was now placed on the construction of the contract and whether the thing undertaken in the contract, would, if performed, be a different thing from that which was contracted for. In Davis Contractors, Lord Reid, agreeing with Lord Loreburn’s idea , “was of the view that in most cases, frustration depends on the true construction of the terms of the contract read in light of the nature of the contract and the surrounding circumstances in which the contract was made, rather than on the implication of a term”. This shift in emphasis pointed towards the general reluctance of courts to invoke the doctrine of

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