Discharge by frustration

The following Dispute Resolution practice note provides comprehensive and up to date legal information covering:

  • Discharge by frustration
  • What is frustration?
  • Meaning of frustration—radically different performance
  • Frustration and mistake
  • Possible future frustrating event
  • Frustration applied
  • Step 1—construction of contract
  • Step 2—performance of contract in new circumstances
  • Step 3—compare 'new obligation' with 'old obligation'
  • Interests of justice?
  • More...

Discharge by frustration

Coronavirus (COVID-19): In addition to the below content on force majeure generally, see also:

  1. Coronavirus (COVID-19) toolkit—Contracts

  2. Coronavirus (COVID-19) and contractual obligations—checklist

together with the Q&A (in the related content pod on the right hand side) for specific guidance on the issues to consider if your contract is impacted by coronavirus.

This Practice Note summarises how the common law doctrine of frustration may operate to discharge an agreement and the legal consequences of a contract being frustrated, including issues of partial frustration, party at fault (self-induced frustration) and examples of types of frustrating event. See also Practice Notes:

  1. Frustration event analysis—a practical guide

  2. Frustration—key and illustrative decisions

For guidance on drafting a notice asserting frustration of a contract, see Precedent: Contract frustration notice.

What is frustration?

Frustration is a common law doctrine which operates to bring an agreement to an end on the happening of some unforeseen supervening event which is beyond the control of the parties to the agreement.

A contract may be frustrated if an unforeseen event occurs after the contract is formed and:

  1. as a result of that event:

    1. the contract becomes impossible to perform and/or

    2. the obligations under the contract are transformed into something radically different

  2. the contract does not contain a clause intended to deal with the unforeseen event

  3. the unforeseen event is not caused by either party’s conduct

The effect of frustration is:

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