Ferdinand, a well known portrait painter, is approached by George who wants a portrait painting of his wife, Gertrude. It is agreed that the price is £5,000, £1,000 payable immediately and £4,000 payable upon delivery of the painting in two months time. Gertrude will sit for up to six times so that Ferdinand may paint her portrait. The painting is required for the opening of George and Gertrude’s restaurant.
Consider the legal consequences of each of the following alternative situations:
(a) Ferdinand breaks his arm while hang-gliding and will be unable to paint for several months; (35 marks)
(b) After two sittings, but before the painting is completed, Gertrude dies; (30 marks)
(c) Ferdinand has almost completed the painting when his studio and paintings are destroyed by fire. (35 marks)
I'm just not sure how to argue these. Does (a) have something to do with temporary delays, etc.? The paintings could still be completed but they require the paintings for the restaurant opening? Also, does this have to be included in the contract - the fact that the intention if to have them for the restaurant opening?
With regard to (b), is the contract discharged because of death/impossibility and no party is at fault? What will happen to the money already paid or is still payable?
And (c), will this end the contract? Does the issue of foreseeablility come in here? Example, most people have insurance for damage to building and contents in case a fire does occur, etc.? Also, will any money be claimed, returned, etc?
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Frustration question watch
- Thread Starter
- 05-08-2009 21:48
- 05-08-2009 23:53
Try not to jump to the answer. Work systematically through the requirements for frustration to try and work out the answer; don't try to work backwards: the answer in problems questions is almost always ambiguous.
In a), yeah, whether the contract could still be performed, just not in time for the restaurant opening, is an issue. The restaurant opening would probably need to be in the contract or at least in the contemplation of the parties.
In addition, perhaps the contract is for a painting generically rather than a personal one specifying that it is Ferdinand to do it; in which case Ferdinand might well engage another painter to do the contract.
One could also argue that Ferdinand is at fault as he took the risk of going hang-gliding and has to live with the consequences.
In b) we don't know whether the painting could be completed on the basis of the information from those two sittings. Of course if the painter has spent money and received the £1,000 he can keep it to off-set his expenses even in the event of frustration
In c), indeed perhaps insurance will make the courts reluctant to accept frustration.
- Thread Starter
- 08-08-2009 21:44
thanks, great help jacketpotato