frustration and discharge??
-Remedies-particularly frustration
-Discharge
whats the difference?
I always thought that frustration was undre Discharge??
thanks
-Discharge
whats the difference?
I always thought that frustration was undre Discharge??
thanks
'Frustration' isn't a remedy, perhaps your notes are muddled?
Remedies are things such as damages, specific performance, and rescission.
Remedies are things such as damages, specific performance, and rescission.
It's all to do with the date at which the parties become discharged from future obligations.
With a repudiatory breach of contract, the parties are discharged from the date of breach (unless it is affirmed). That's largely fine because the 'innocent' party determines the effects of breach.
With frustration, the parties are discharged from the date of the frustrating event. This has been referred to in the past as 'the atom bomb' of contractual outcomes and is why the courts are generally slow to find frustration. The loss is suffered where it falls. Who loses what is entirely determined by the stage the parties have reached. So in Case A where payment is made before the frustrating event it will not be recoverable whereas in Case B, payment being due after the date of the frustrating event, it will not need to be paid. Much more of a lottery, all in all.
With a repudiatory breach of contract, the parties are discharged from the date of breach (unless it is affirmed). That's largely fine because the 'innocent' party determines the effects of breach.
With frustration, the parties are discharged from the date of the frustrating event. This has been referred to in the past as 'the atom bomb' of contractual outcomes and is why the courts are generally slow to find frustration. The loss is suffered where it falls. Who loses what is entirely determined by the stage the parties have reached. So in Case A where payment is made before the frustrating event it will not be recoverable whereas in Case B, payment being due after the date of the frustrating event, it will not need to be paid. Much more of a lottery, all in all.
Thanks..What i mean is if there is a question like..
Harold contracts to take a group to London to go to a new Gary Olivier
restaurant, visit an exhibition at the Tate Modern Gallery, do some shopping
and see a play. He sells tickets for £20, £10 payable in advance. The
following events occur:-
(i) Two days before they set off, the restaurant is closed after a serious
bout of food poisoning;
(ii) The usual colour of paint background used by the Tate Modern Gallery
has been discontinued and the management were reported as saying
on the news that this completely changed the viewing experience;
(iii) The famous leading actor in the play is replaced with an unknown
actor;
(iv) The motorway is closed for resurfacing and the coach company
advises Harold that the alternative route will be more expensive;
(v) The weather is very bad and Harold, who is afraid of thunder and
lightening, cancels the trip.
The group decide to sue Harold.
Advise Harold on what legal basis he may be able to discharge his
contractual obligations and the consequences of the discharge.
I started talking about Discharge and then i went into Frustration... would that be correct?
Harold contracts to take a group to London to go to a new Gary Olivier
restaurant, visit an exhibition at the Tate Modern Gallery, do some shopping
and see a play. He sells tickets for £20, £10 payable in advance. The
following events occur:-
(i) Two days before they set off, the restaurant is closed after a serious
bout of food poisoning;
(ii) The usual colour of paint background used by the Tate Modern Gallery
has been discontinued and the management were reported as saying
on the news that this completely changed the viewing experience;
(iii) The famous leading actor in the play is replaced with an unknown
actor;
(iv) The motorway is closed for resurfacing and the coach company
advises Harold that the alternative route will be more expensive;
(v) The weather is very bad and Harold, who is afraid of thunder and
lightening, cancels the trip.
The group decide to sue Harold.
Advise Harold on what legal basis he may be able to discharge his
contractual obligations and the consequences of the discharge.
I started talking about Discharge and then i went into Frustration... would that be correct?
Original post by Barrister101
With frustration, the parties are discharged from the date of the frustrating event. This has been referred to in the past as 'the atom bomb' of contractual outcomes and is why the courts are generally slow to find frustration. The loss is suffered where it falls. Who loses what is entirely determined by the stage the parties have reached. So in Case A where payment is made before the frustrating event it will not be recoverable whereas in Case B, payment being due after the date of the frustrating event, it will not need to be paid. Much more of a lottery, all in all.
With frustration, the parties are discharged from the date of the frustrating event. This has been referred to in the past as 'the atom bomb' of contractual outcomes and is why the courts are generally slow to find frustration. The loss is suffered where it falls. Who loses what is entirely determined by the stage the parties have reached. So in Case A where payment is made before the frustrating event it will not be recoverable whereas in Case B, payment being due after the date of the frustrating event, it will not need to be paid. Much more of a lottery, all in all.
Hmm, I'm probably misunderstanding what you're saying but this doesn't seem right since section 1(2) of the Law Reform (Frustrated Contracts) Act 1943 allows money paid to be recoverable after frustration:
All sums paid or payable to any party in pursuance of the contract before the time when the parties were so discharged (in this Act referred to as “the time of discharge”) shall, in the case of sums so paid, be recoverable from him as money received by him for the use of the party by whom the sums were paid, and, in the case of sums so payable, cease to be so payable;
and section 1.3 allows someone who has part performed a frustrated contract but not been paid to recover payment:
Where any party to the contract has, by reason of anything done by any other party thereto in, or for the purpose of, the performance of the contract, obtained a valuable benefit (other than a payment of money to which the last foregoing subsection applies) before the time of discharge, there shall be recoverable from him by the said other party such sum
(edited 12 years ago)
Original post by Forum User
Hmm, I'm probably misunderstanding what you're saying but this doesn't seem right since section 1(2) of the Law Reform (Frustrated Contracts) Act 1943 allows money paid to be recoverable after frustration:
All sums paid or payable to any party in pursuance of the contract before the time when the parties were so discharged (in this Act referred to as “the time of discharge”) shall, in the case of sums so paid, be recoverable from him as money received by him for the use of the party by whom the sums were paid, and, in the case of sums so payable, cease to be so payable;
and section 1.3 allows someone who has part performed a frustrated contract but not been paid to recover payment:
Where any party to the contract has, by reason of anything done by any other party thereto in, or for the purpose of, the performance of the contract, obtained a valuable benefit (other than a payment of money to which the last foregoing subsection applies) before the time of discharge, there shall be recoverable from him by the said other party such sum
All sums paid or payable to any party in pursuance of the contract before the time when the parties were so discharged (in this Act referred to as “the time of discharge”) shall, in the case of sums so paid, be recoverable from him as money received by him for the use of the party by whom the sums were paid, and, in the case of sums so payable, cease to be so payable;
and section 1.3 allows someone who has part performed a frustrated contract but not been paid to recover payment:
Where any party to the contract has, by reason of anything done by any other party thereto in, or for the purpose of, the performance of the contract, obtained a valuable benefit (other than a payment of money to which the last foregoing subsection applies) before the time of discharge, there shall be recoverable from him by the said other party such sum
I was referring to the common law position. It is true that the Act has mitigated the harshness to a degree but it is of piecemeal application and does not apply universally. Significantly, it does not apply to carriage of goods contracts, which happen to be the most common field for frustrating events! Also, s1(2) (where it does apply) only even then applies where there is a term for pre-payment within the contract. Where the party either pays in advance of the date the obligation accrues or incurs any other form of expenditure in reliance on performance, those are not catered for by the Act and are 'lost'.
Original post by lawplus
I started talking about Discharge and then i went into Frustration... would that be correct?
Yes - if a case of frustration is made out you would conclude that the contract is discharged from the date of the frustrating event. Then you would move to consider the possible remedies that C would be entitled to as a result.
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