Chapter 7 Guidance on answering the questions in the book

Frustration

1. 'The frustration doctrine is quite distinct from that of mistake; it deals with the ending of a contract and not its formation and its consequences are quite different from that of mistake.' To what extent is, and to what extent should this be, true?

See 7.1.1 Frustration and mistake.

6.3.6.3 The future of equitable common mistake

7.6 The effect of frustration

7.7 Hardship and contract modification: frustration, duress and consideration.

This question invites you to consider the relationship between the doctrines of frustration and common mistake.  The sub-questions you should consider include:

  • How important is the different timing of the operation of the doctrines?
  • What are the remedial differences between these doctrines?  Are they justifiable?
  • What other differences, if any, are there between the doctrines?
  • What similarities can be detected?
  • For similarities and differences consider, for example, the nature of the complaint addressed by each doctrine, the scope of the doctrines, the justifications for each doctrine and the appropriate remedy.
  • State your conclusion as to whether frustration and common mistake are more alike than different.  What might follow from your conclusion?

2. 'A contract is only frustrated when its performance is impossible.' Discuss.

See 7.3 Frustrating circumstances.

This question invites you to explain the case law on the threshold test for frustration.  This has been put in terms of impossibility of performance.

  • Trace the origins of this formulation.
  • What does it mean in practice (e.g. physical, legal or something else; give examples)?  Consider the main 'categories' of frustration.
  • Linking your discussion to the underlying justification for frustration will give your essay depth.

3. You have been asked to advise the Law Commission on the problem raised by The Super Servant Two. Should the law on self-induced frustration be reformed? If so, how?

See 7.5 Fault: self-induced frustration.

This question invites you to consider the decision in The Super Servant Two.  The sub-questions you should consider are:

  • What was the decision in this case?  How was it justified?
  • How is it related to self-induced frustration? 
  • What criticisms have been, or can be, made of the decision and its reasoning (eg in terms of precedent or unfairness)?
  • Are there any workable alternatives?

4. What can the parties do about losses suffered in performance of a contract which is discharged for frustration?

See 7.6 The effect of frustration.

This question invites you to consider the impact of the Law Reform (Frustrated Contracts) Act 1943 (LR(FC)A).  The sub-questions you should consider are:

  • What can be claimed in respect of (i) money paid, and (ii) non-money performance?
  • How should the 'just sum' and 'just expenses' be calculated?
  • Note the reforms brought by the LR(FC)A over the pre-LR(FC)A law.
  • Is there any room for improvement in the current law?  If so, what? Consider the regimes in other jurisdictions.

5. In February, Paul books Queenie to perform at Paul's concert venue for two weeks in August. In early April, Rex books Queenie to perform for late August. Queenie suffers widely publicized bouts of ill health in March and, in mid April, she is admitted to hospital with a poor chance of recovery. Paul and Rex book other acts instead.

  1. Can Paul and Rex get their £500 deposit back from Queenie?
  2. What if Queenie had spent £400 on new costumes in preparation for her performances?
  3. What if Queenie recovers completely by the end of July?

See 7.6.3 Money paid or payable under LR(FC)A

7.6.4 Non-money benefits under LR(FC)A.

  1. Paul and Rex will be in breach unless they can show that the contract has been frustrated.  Has it been?  Does it matter that Rex books Queenie after her ill health was known?  Does it matter that Paul and Rex cancelled before the time for performance had arrived?  Be sure to cite some authority for all your answers.  What is the answer to question (i) if there is no frustration?  What if there is frustration?
  2. What if Queenie had spent £400 on new costumes in preparation for her performances?  Even if Queenie must return the £500 deposit, can she offset her costs of £400?  What would be her basis for doing that?
  3. What if Queenie recovers completely by the end of July?  This is really the same issue as that in (i) regarding when frustration can be judged.  Just as anticipatory breach is recognized, is there an equivalent of anticipatory frustration?