Law Reform Committee of South Australia - Essay Example

?[Frustration] “Frustration” Frustration happens when a statute recognizes that in the absence of default from concerned parties, a contractual responsibility becomes incapable of being executed due to the conditions in which action is called for would create a new aspect from the one formally undertaken by the contract. The Purpose of this paper is to analyze the statement “Since the upshot of frustration is to exterminate the contract and release the parties from further liability under it, the doctrine is not to be facetiously invoked, but must be kept inside very constricted limits and ought not to be extensive”1 . The discussion in this paper is intended to be inclined to the case AS v Wijsmuller BV (The Super Servant Two), [1989] EWCA Civ 6, [1990]. The doctrine of Frustration under the contract law intends to reveal a number of propositions contextualized in the case AS v Wijsmuller BV. Some of these propositions include evolving to ease the rigor of the common law’s avowal on factual performance of unlimited promises, outcome of frustration to end the contract and an event must occur without a liability on the side of the party seeking to depend on it2. The Purpose of this paper is to analyze the statement “Since the consequence of frustration is to eradicate the contract and eject the parties from supplementary burden under it, the doctrine is not to be unconscientiously invoked, but must be kept inside much contracted limits and ought not to be unmitigated”. The discussion in this paper is intended to be inclined to the case AS v Wijsmuller BV The doctrine of frustration exhibits complexity when determining the cases in this context3. Some of the examples of frustration include destruction of the specific object, which is fundamental for execution of the contract, personal incapability, and non-occurrence of a particular event, state interference, delay and supervening illegality4. For the case of the AS v Wijsmuller BV (The Super Servant Two), [1989] EWCA Civ 6, [1990], the aspect of frustration is inclined to personal incapability, destruction of the specific object and supervening an illegality5. This case remains one of the landmark rulings in the history of contract law practice. The aspect of liability when considering the frustration doctrine creates a concern of narrow limits because of numerous reasons. For instance, the express provision for frustration is limited to the scope of not superseding over the express contractual provision for the exasperating occurrence. In fact, it becomes difficult to ascertain the extent of a frustrating event, particularly when its occurrence is inclined to the self-inducement and foreseeability of the event6. In essence, the narrow limits of the frustrating events should be a fundamental consideration in the endeavor to minimize the extent of frustration effects. This study reveals that the effects of contract frustration can only remain relevant if the doctrine is applicable. The aspect of causation forms the epicenter of argument in this case. It is notable that, the contract undergoes frustration when Wijsmuller submitted a fortnight later that, the contact could not be performed. The question of causation is evident and any judge would consider a case in which a seller is in a position to aver the defense of a clause, which defends him in situations where fulfillment is stalled by the exempt threat7. The consequent delivery of his accessible stock to other clientele will not be considered as autonomous cause of inadequacy, as long as when making such delivery the seller acted in a reasonable manner in all situations of the case. This consideration should be kept within narrow limits to avoid unwarranted liability. Considering that, Dan King contract had been accorded carriage by Super Servant Two without a substitute and in the event that, the vessel had been lost before the time of carriage, then with ultimate assumption of non- negligence by Wijsmuller, it is probable that, the contract would have been frustrated8. According to the doctrine of frustration, it should avail to a party who contracts to carry out a contract with a container, which might exhibit, some fault not directly attributed to the contractor’s involvement. However, for this case, it is different; an alternative carrier was not provided in the Dan King contract. This means that, Wijsmuller did not contend, that at the time of making the Dan King contract, none of the two barges had been earmarked for the carriage, and this is the sole reason for contracting an option9. This aspect is intended to kill the contract. In fact, there is no aspect of foreseeing what awaited the Super Servant Two, which resulted to the unintended frustration of the contract. In this regard, Mr Leigh-Jones is justifiable within the context of the statement under examination. Indeed the case under consideration does not fall within the limited group of cases, which the law can grant relieve to one party from an unconditional promise made voluntarily. On the other hand, critical laws can be a foundation of criticizing Wejsmuller’s assertion10. For instance, it can be argued that, the contract become frustrated in the event of Wesjmuller’s communication, which rendered the meaning of contract void, as ending automatically. This study observes that, the cases inclined to frustrating delay do not help Wijsmuller. This is because of the aspect of actual and prospective delay that can be speculated from the circumstances of the case, which Wijsmuller took advantage. This directly frustrates the contract and a party should not decide to treat the delay. Consequently, the limits should be narrowed to a reduced level of liability11. In essence, Wejsmuller’s test confine the law in a legalistic position and enhances distraction of attention from the actual question of whether the frustrating occurrence depended upon, is rightly an outside incident or superfluous variance of conditions12. It is notable that, a finest test for any legal duty is inapt; in fact, the sole requirement for this case is a realistic judgement intended to ascertain whether a party seeks to depend on an occurrence as discharging Wijsmuller from a contractual promise, which depicts him as solely responsible for the happening of that occurrence. On similar note, the plead by Lauritzen on close examination of the grounds under which, the Super Servant Two got lost due to the carelessness attributed to Wijsmuller and agents. Any fundamental assertion on this situation might preclude Wijsmuller from relying on their plea of frustration13.This step intends to reduce the effects of the doctrine of frustration, consequently reducing or narrowing the anticipated liability. In conclusion, the case of the AS v Wijsmuller BV (The Super Servant Two), [1989] EWCA Civ 6, [1990], reflects the extent to, which the doctrine of frustration affects the involved buyer when, the limits of liability are not narrowed. This study has revealed that, this case does not fall within the limited group of cases, which the law can grant relieve to one party from an absolute promise made willingly. On the other hand, critical laws form a basis of criticizing Wejsmuller’s assertion14. The contract became frustrated in the event of Wesjmuller’s statement, which rendered the meaning of contract negated, as ending automatically. This study observes that, the cases inclined to frustrating delay do not help Wijsmuller. This is because of the aspect of actual and prospective delay that can be projected from the conditions of the case, which Wijsmuller took advantage15. However, a different perspective on this case reveals that, Wejsmuller’s test confines the law in a legalistic position and enhances distraction of attention from the actual question of whether the frustrating occurrence depended upon, is rightly an outside incident or inappropriate variance of conditions. In essence, the contextual requirement for this case is a sensible judgement. Bibliography AS v Wijsmuller BV (The Super Servant Two), [1989] EWCA Civ 6, [1990] Law Reform Committee of South Australia. Relating to the Doctrine of Frustration in the Law of Contract. [Adelaide]: Government Printer, [1983] Martin Jennifer, Excuse Doctrine Impossibility, Frustation and Impracticability. CALI: The Center for Computer-Assisted Legal Instruction. Minneapolis, MN: Center for Computer-Assisted Legal Instruction, [2010] Tombe B. T. R. The Doctrine of Discharge by Frustration: A Comparative Study in the English and French Legal Systems. Yaounde?: [s.n.], [1989] Read More