Frustration event analysis—a practical guide

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

  • Frustration event analysis—a practical guide
  • Stage 1—the contractual provisions
  • Stage 2—has there been a frustrating event?
  • Comparing new obligations with old
  • Some pertinent questions to ask
  • Stage 3—causation
  • What is the actual cause—coronavirus hypothetical
  • Stage 4—is there any reason why frustration isn’t applicable?
  • Stage 5—Declaring frustration—timing
  • Asserting frustration after time for performance
  • More...

Frustration event analysis—a practical guide

This Practice Note on frustration provides a practical guide when considering whether an unforeseen event may be considered to have frustrated an agreement. It must be read in conjunction with Practice Note: Discharge by frustration.

Frustration is a common law doctrine in English law. It brings a contract to an immediate end where an unforeseen supervening frustrating event frustrates the contract rendering performance of it impossible, illegal or radically different from that which had been agreed. Where it applies, all future obligations under the agreement fall away. Sums paid prior to the supervening event and discharge are recoverable but any sums yet to be paid are no longer payable, subject to the court’s discretion (under the Law Reform (Frustrated Contracts) Act 1943 (LR(FC)A 1943)) to allow the recovery of prior incurred expenses.

Frustration is particularly difficult to successfully establish. It introduces an element of uncertainty into contractual relations which the courts are not favourable to and is therefore subject to narrow confines (The Super Servant Two).

For a summary in tabular form of the key authorities on frustration, see Practice Note: Frustration—key and illustrative decisions. Note, however, that each case is fact sensitive and therefore will be decided on its own merits, particularly with regard to the ‘multi-factorial approach’ espoused in Edwinton v Tsavliris (The Sea Angel).

Although the below guidance is set out

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