Frustration Essay

Frustration is a long established doctrine in English law, which allows for the termination of a contract when, through no fault of either party, an unforeseeable, supervening event, renders performance of the contract impossible, or ‘radically different’.1 This doctrine coincides with force majeure, a continental doctrine and a term not traditionally recognised in English courts. Firstly this essay will briefly look at force majeure clauses, before moving on to what the doctrine of frustration is, and how it is justified. Then the problems with frustration will be addressed, and how force majeure clauses can be used, to some extent, to solve these problems. Lastly, the challenges to the retainment of the doctrine of frustration will be considered, but it will essentially be concluded that both doctrines can coexist in English law. 

Force majeure clauses are, in simple terms, provisions in a contract which allocate specific remedies for certain ‘unforeseen’ events. Force majeure events include Acts of God, storms, flood, fire, war, strikes and more. 2 The widespread use of force majeure clauses in commercial contracts nowadays could be, in part, down to the desire of parties in long-term contracts to continue their relationship through changing circumstances and the introduction of EU law into our domestic system. 

The law before the doctrine of frustration was one of absolute contracts, in the sense that only limited circumstances excused non-performance. The main authority establishing this concept is Paradine v Jane, 3 which established that once a party assumes an obligation, they are ‘bound to make it good’. 4 The roots of the doctrine of frustration were established in the landmark case of

Taylor v Caldwell 5, wher...

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...e doctrine of frustration. 25 Eliminating frustration from english law, and instead relying on force majeure clauses, could be seen as taking a step back towards the time of absolute contracts, where supervening events would not discharge the contract because the parties could have ‘provided against it’. 26 This concept of ‘no excuse’ was seen as extreme, so it seems peculiar that a situation analogous to it, is being advocated. 



Finally, it can be argued that both the doctrine of frustration and force majeure can coexist in English law. A contract will not be frustrated if the parties foresaw the event. So although a force majeure clause may not shut out the doctrine of frustration completely, it can act as evidence that the alleged frustrating event was one which the parties foresaw. The coexistence of these two doctrines can be seen, in particular, in situate