Test/Elements of Frustration:

1
Test/Elements of Frustration Is the party at
fault. Is there a radical change in the
contractual obligation in respect of which no
prior agreement has been reached? Was the
supervening event, from which the radical change
in obligation is arising from, unforeseeable?
2
Paradine v. Jane(1647) 82 E.R. 897 Where the
law creates a duty or charge, and the party is
disabled to perform it without any default in
him, and hath no remedy over, there the law will
excuse him But when the party by his own
contract creates a duty or charge upon himself,
he is bound to make it good, if he may,
notwithstanding any accident by inevitable
necessity, because he might have provided against
it by his contract (Another reason was added,
that as) the lessee is to have the advantage of
casual profits, so he must run the hazard of
causal losses, and not lay the whole burthen of
them upon his lessor
3
Taylor v. Caldwell (1863) 3 B S 826 Where
there is a positive (and absolute and not subject
to any condition either express or implied)
contract to do a thing, not in itself unlawful
the contractor must perform it or pay damages for
not doing it, although in consequence of
unforeseen accidents, the performance of this
contract has become unexpectedly burthensome or
even impossible. In the absence of any express
or implied warrant that the thing shall exist,
the contract is not to be construed as a positive
contract, but as subject to an implied condition
that the parties shall be excused in case, before
breach, performance becomes impossible from the
perishing of the thing without default of the
contractor
4
Davis Constructors Ltd. v. Fareham UDC 1956
A.C. 696 (H.L.) Definition of frustration Frustr
ation occurs whenever the law recognizes that
without default of either party a contractual
obligation has become incapable of being
performed because the circumstances in which
performance is called would render it a thing
radically different from that which was
undertaken by the contract. Non heac in foedera
veni. It was not this that I promised to do The
materials upon which the court must proceed to
make a decision terms and construction of the
contract, read in light of the then existing
circumstances, and the events which have
occurred. In this case two things prevent the
application of the principle of frustration a)
the cause of delay was not any new state of
things which the parties could not reasonably be
thought to have foreseen b) contractor cannot
rely on frustration to get him out of his
unfortunate predicament