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Flashcards in Contract Law Second Term - FRUSTRATION Deck (60):
1

What are the three circumstances in which frustration is used?

Performance is illegal, physically impossible or requires something radically different

2

'No excuses'

Paradine v Jane

3

Paradine v Jane

'No excuses'; enemy invasion

4

Taylor v Caldwell

Music hall

5

How did they invoked frustration in Taylor v Caldwell?

Implied term if subject ceases to exist then no contract

6

What Act could Taylor v Caldwell now try and claim under?

LR(FC)A 1943

7

Jackson v The Union Marine

6 months stranded; 'would have been a different voyage'

8

What are the three issues with implied term in Taylor?

How can unforeseen events be implied, does not consider all terms that would have been implied and courts still frustrate even with FM clauses

9

James Scott v R & N

Tiger and milk girl

10

Denny, Mott v James B Fraser

'Reservations' parties would have made etc are not implied in as terms

11

Ertel Bieber v Rio Tinto on FM clauses

Still frustrate contract even with FM

12

Ertel Bieber v Rio Tinto on legal impossibility

Cannot exclude doctrine of F by express term for subsequent illegality

13

Who gave that the test is that the outcome is something 'radically different'?

Lord Radcliffe in Davis Contractors v Fareham Urban DC

14

What did the court refuse to recognise in Davis Contractors v Fareham UDC?

Commercial impracticability

15

Fibrosa Spolka v Fairbairn

Illegal due to war

16

Baily v De Crespigny

Acquisition of land by state

17

Metropolitan Water Board v Dick Kerr

Reservoir, ministry; 'substitute a different contract'

18

Cricklewood Property v Leighton's Investment

99 years, restriction left 90 so not radically different

19

What are the three sub-categories of physical impossibility?

Death/incapacity, destruction of subject matter and delay/hardship

20

Marshall v Harland

Test for sufficient incapacity: 'impossible' or 'radically different' performance

21

FC Shepherd v Jerrom

Prison

22

Notcutt v Universal Equipment

Heart-attack; void

23

Phillips v Alhambra

Proprietor died; others could perform

24

Name two cases where subject matter was destroyed

Taylor v Caldwell; Appleby v Myers; Asfar v Blundell; Jackson v The Union Marine

25

Asfar v Blundell

Dates submerged; partial but substantially different

26

Jackson v The Union Marine on destruction of subject

6 months stranded; 'practical commercial destruction'

27

Davis Contractors on delay and hardship

'More onerous' but not of a 'different kind'

28

Jackson v The Union Marine on delay and hardship

Time of the essence; 'with all possible dispatch'

29

The Eugenia

Suez canal

30

Why was the delay not sufficient in The Eugenia?

108 - 128 and not of the essence.

31

Two cases on impossibility of purpose

Krell v Henry; Herne Bay Steamboat v Hutton

32

Krell v Henry

Coronation

33

Herne Bay Steamboat v Hutton

Pleasureboats

34

What are contractual interpretations for in frustration?

To see if either party made provision

35

What are the two ways to interpret provision in contracts for frustration?

Express terms or implied allocation

36

Metropolitan Water Board on express term for F

Delay did not apply as 'so abnormal' it fell outside what parties could have 'possibly contemplated'

37

What case shows implied allocation of risk for F?

WJ Tatem v Gamboa

38

WJ Tatem v Gamboa

Civil war refugee ship

39

What was the implied allocation in WJ Tatem?

Highly foreseeable so allocated to performing party

40

What was frustrating in WJ Tatem?

Length of seizure rather than seizure itself

41

To prove fault in F, who is the onus on?

Onus on C to show D brought it about

42

The Eugenia on fault

Charterers in BoC by entering war zone

43

The SS2

Drilling rig, self-induced

44

Jerrom on anticipatory breach and fault

Person at fault cannot rely on doctrine of F

45

Maritime National v Ocean Trawlers

Five licences

46

Chandler v Webster

Coronation, £100 and £41

47

Fibrosa Spolka v Fairbairn

Occupation; 'total failure of consideration'

48

What was the 'quasi-contractual' claim in Fibrosa?

For unjust enrichment

49

What section is money covered in LR(FC)A?

S.1(2)

50

What section are non-money benefits covered in LR(FC)A?

S.1(3)

51

Lobb v Vasey

Under s.1(2) onus on D to show 'just'

52

Gamerco v ICM/Fair Warning

Guns and roses

53

Which case highlighted three possibilities for deciding expenses under s.1(2)?

Gamerco v ICM/Fair Warning

54

BP Exploration (Libya) v Hunt (No.2)

Oil concession

55

What were the two stages in BP?

What benefit was conferred? £85 mil (end product minus expropriation) Just award to BP in light of expenses? £35 mil (contract price)

56

What case is not solved by s.1(3)?

Appleby v Myers

57

Why is Appleby v Myers not solved by s.1(3)?

'Valuable benefit' = 'end product', but no end product.

58

Who criticised s.1(3) for taking an end-product analysis?

McKendrick, "Frustration, Restitution and Loss Apportionment"

59

What arguments in favour of loss apportionment does McKendrick give?

Economically sounder and 'one of the parties has to suffer loss for which neither is responsible' (Bingham, SS2)

60

Who said 'grave deficiencies' are still there in LR(FC)A?

McKendrick