正在編輯用戶:Hinnia/Frustration （章節）

== Limits to frustration ==

=== Contractual Provision ===

* ‘force majeure’ and similar clauses may well replace the common law and statutory rules on frustration
* Narrow interpretation generally given to such clauses 
* Mass adverse circumstances clause
* Force majeure 不可抗力
* IF contract ends
* One party has to refund X percent
* Express clause (e.g., force majeure) governs → frustration excluded

=== Where the contracting party assumed the risk ===

* If event foreseeable and risk assumed → no frustration
* CTI Group Inc v Transclear SA [2008] EWCA Civ 856
** One party agreed to sell cement
*** Does not actually have cement
*** Could not buy cement
*** Says contract is frustrated
** Company assumed the risk under the contract
** Courts will look at allocation of risk
*** If contract allocates risk to contracting party
*** Contract not discharged through frustration

=== Impracticality is not sufficient ===

* Davis v Fareham UDC
* Facts:
** Building contract
** Agrees to build housing for Fareham council
** All kinds of problems
*** Post war shortages
*** Difficulty in getting labour
*** Very bad and freezing winter
** Cannot build houses on Scedule
* Held
** While more impractical and expensive to build
** Not enough to frustrate contract
* Herne Bay Steamboat Company v Hutton [1903] 2 K.B. 683
** Facts:
*** Hutton contracted to hire a steamship (Cynthia)
*** following a public announcement that a Royal naval review was to take place at Spithead on that day. 
*** Contract was "for the purpose of viewing the naval review and for a day's cruise round the fleet".
**** King fell ill
**** Cancelled naval review
*** Defendants refused payment
**** Stating the contract was frustrated in purpose.
** Held:
*** Contract was not frustrated, and the balance in full was due to the plaintiff.
*** May seem contradictory to Krell v Henry
**** Can be explained by reference to the agreement the parties reached
**** Hiring was not merely to witness the naval review, but also for a cruise around the fleet.
***** This purpose was still entirely possible

* Krell v Henry [1903] 2 K.B. 740
** Room with view at corner
** Procession has to slow at corner
** Krell agrees to rent out Henry room with view
** Promised excellent view of the procession from the room.
** However, Procession cancelled
*** King fallen ill with appendictis
** Took decision in Taylor and Cladwell
*** Extended to non-happening of events
** Contract is discharged on basis of implied term

=== Imprudent bargains ===

* The Nema (Pioneer Shipping Ltd v BTP Tioxide Ltd (No 2)) [1982] A.C. 724
** If entered into bad bargain
** More expense
** Not going to discharge contract

=== Forseeability ===

* W.J. Tatem Ltd v Gamboa [1939] 1 K.B. 132
** Facts:
*** A ship was chartered for 30 days to evacuate civilians from the Spanish Civil War
*** Seized by the opposing faction and detained for nearly two months.
*** Charterer stopped paying hire after the seizure.
** Held: The contract was frustrated. Foreseeability does not automatically bar frustration.
* Reasoning:
** Frustration applies when the foundation of the contract disappears, making performance radically different.
** Critical question not whether the parties foresaw the event
*** But whether they made a contractual provision for it.
** Seizure was a foreseeable wartime risk,
** Charterparty did not contain terms allocating the consequences of a long-term detention.
** High hire rate reflected general risk, not a specific bargain for this outcome.
** Seizure destroyed the core purpose of charter, fundamentally altering the contractual obligations.
* Ocean Tramp Tankers Corp v V/O Sovfracht (The Eugenia) [1964] 2 QB 226
** Parties could see Suez was gonna be blocked
*** Couldn’t agree on what to do
*** Contract was silent
** Denning:
*** No frustration of the contract.
*** Charterers could not rely on any self-induced frustration as ground
*** For arguing the contract was frustrated.
*** If they had not tried the Suez canal
**** Would have had to sail around the Cape
**** Would not have rendered the contract radically different.

=== Frustration must not be self-induced ===

* Maritime National Fish Ltd v Ocean Trawlers Ltd [1935] A.C. 524
** Case from Canadian Privy Council
** Fishing case
** Fish boats owned by the company
*** Own three rent two
*** Have to have fishing license to operate boat
*** 5 boats
** Gov withdraws 2 licenses
** Take license off one rented and one owned
*** Then say contract is frustrating
*** Couldn’t get license
*** Cannot use boat
** Court: have 3 licenses
*** 2 boats are rented
** Self induced frustration
*** Their own problem

* The Super Servant Two [1990] 1 Lloyd's Rep 1
** Renting of two boats
*** Super servant 1 and 2
*** Boats that tow oil rigs
** Party could use one or the other to perform contract
*** Used 2 to tow rigs, 1 for another contract
** Super servant 2 sunk
** Cannot finish contract
*** Frustrating?
** Had a choice between the two
*** Self induced
*** Choice in contract was theirs
** Their decision to use 1 for anothe contract