Chapter 7

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, 6.3.3 and 7.6 – 7.7.

This question invites you to consider the relationship between the doctrines of frustration and that of 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 difference consider, for example, the nature of the complaint addressed by each doctrine, scope of the doctrines, the justifications for each doctrine, 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. 'It is a paradox that while it is wholly unrealistic to explain the effect of frustration as the operation of implied term, yet the parties' intention remains central to the justification of the frustration doctrine.' Discuss.

See 7.2.

This is a rather difficult question; it asks you to address the justification for the frustration doctrine. You must decide whether, in general, you will agree or disagree with the statement. The sub-questions you should consider include:

What is the implied terms justification of frustration? What criticisms have been, or can be, made of such an analysis? Can these criticisms be countered to disagree with the statement?
If you agree with the statement, you must address the second part of the quote; how can the parties' intention remain central to the justification for frustration? In what circumstances does the frustration doctrine tell us that the parties' intention to be bound 'run out'? You need to link your theoretical discussion to the case law.
Another approach is to say that frustration is neither about implied terms nor the parties' intentions but about something else.

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

See 7.3.

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.

4. To what extent can contract parties exclude the operation of the frustration doctrine?

See 7.4.

This question invites you to consider the courts' treatment of force majeure or hardship clauses which oust the operation of the frustration doctrine. The sub-questions you should consider are:

What are force majeure or hardship clauses? What can they stipulate?
What are the policies at play (what are the pros and cons of upholding such clauses)?
What techniques are available to courts to control the enforceability of such clauses (give examples)?
Are these satisfactory?
What alternatives can be suggested?

**5. 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.

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 (e.g. in terms of precedent or unfairness)?
Are there any workable alternatives?

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

See 7.6.

This question invites you to consider the impact of the Law reform frustrated contracts Act 1943. The sub-questions you should consider are:

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

7. How does, and how should, the law deal with contract modifications triggered by supervening events that cause hardship short of frustration?

See 7.7, 4.1.5 and 8.4

This question invites you to think laterally about how the law does and should, respond to change of circumstances that render a contract more onerous or less advantageous. The sub-questions you should address are:

What are the pros and cons of enforcing contract modifications in such circumstances?
Where does the current law balance the relevant policies?
How is this expressed in the law (e.g. in the law on consideration and duress)?
What criticisms can be made of the current law?
How can the law be improved?

8. 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.

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

See 7.6.3 and 7.6.4.

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?
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?
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?

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Oxford University Press, Online Resource Centre, Chapter 7.

Chapter 7

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?

2. 'It is a paradox that while it is wholly unrealistic to explain the effect of frustration as the operation of implied term, yet the parties' intention remains central to the justification of the frustration doctrine.' Discuss.

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

4. To what extent can contract parties exclude the operation of the frustration doctrine?

5. 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?

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

7. How does, and how should, the law deal with contract modifications triggered by supervening events that cause hardship short of frustration?

Can Paul and Rex get their £500 deposit back from Queenie?

What if Queenie had spent £400 on new costumes in preparation for her performances?

What if Queenie recovers completely by the end of July?

**5. 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?**