| Commentary

(a) The COVID-19 pandemic

| Commentary

(2)     Frustration

One instance of termination by operation of law is the doctrine of frustration: where, without the fault of either party, some supervening event occurs which was not reasonably foreseeable at the time when the contract was made and which renders further performance of the contract either totally impossible or something radically different from what the parties bargained for, then the contract is forthwith discharged by operation of law. The superseding event must be one that was unforeseen and not catered for in the contract and one that is so fundamental as to strike at the root of the contract.

Typical instances of frustration of the contract are (subject always to the terms of the contract, express or implied, that it will continue in the relevant circumstances) death or serious illness or injury of an individual party to the contract, imprisonment, a change in the law, serious damage or destruction to the work premises or war. As to the latter, see Morgan v Manser [1948] 1 KB 184, [1947] 2 All ER 666: an employee was called up for military service which was held to be a frustrating event even though the parties had provided for continuation of the contract in the event of war in so far as it was possible so to do.

If employed by an individual employer, death will operate to dissolve the contract. Note that death of the employer is deemed to be a dismissal for the purposes of redundancy:

To continue reading
Analyse the law and clarify obscure passages all within a practical context.