The parties had contracted for the sale of concrete. The buyers appealed findings by an arbitrator that the contracts were both frustrated for the inability of the seller to complete after the intervention of a company with an effective monopoly, and that there was in implied term that the sellers failure in such a position would discharge both parties.
Held: Before the default of a supplier can be attributed to a seller, the supplier must have been legally obligated to the seller or to another supplier in the chain to make the supply. If a supplier who fails to make the contemplated supply was not legally bound to make the supply, he cannot be said to have been at fault and thus there is no relevant fault to be attributed to the seller. However, where a seller makes an unqualified promise to sell he bears the risk of a failure of his contemplated source of supply where that source is not the specified source or the goods are not specific goods and the supplier is not excused by frustration. The contract had not been frustrated.
Judges:
Filed J
Citations:
[2007] EWHC 2070 (Comm)
Links:
Jurisdiction:
England and Wales
Citing:
Cited – Lebeaupin v Richard Crispin and Company 1920
Two contracts sold 2500 cases of ‘British Columbia Fraser river salmon’. The first said: ‘The salmon to be the first 2500 cases of half lb flat pinks packed by the St Mungo Cannery during the season of 1917’. The second provided: ‘The salmon to be . .
Cited – Lauritzen A/A v Wijsmuller BV;( ‘The Super Servant Two’) CA 12-Oct-1989
Bingham LJ discussed the nature of frustration of contract: ‘The essence of frustration is that it is caused by some unforeseen supervening event over which the parties to the contract have no control and for which they are therefore not . .
Cited – In re Thornett and Fehr and Yuills KBD 1921
The parties agreed to sell a quantity of two brands of beef tallow, 1919 make. The manufacturers of the stipulated brands chose not to manufacture any tallow at one of their works and at the other they were prevented from manufacturing the required . .
Cited – Re T H Knitwear (Wholesale) Ltd CA 1988
Subrogation is a remedy, not a cause of action. Subrogation of Customs and Excise to a creditor’s right of proof in the winding up of a supplier was refused as it would have been contrary to the statutory scheme for the administration of VAT. . .
Cited – Intertradex SA v Lesieur Tourteraux SARL 1978
The parties contracted to sell a quantity of Mali groundnut expellers cif Rouen. The sellers intended to perform the contracts by appropriating a quantity of Mali groundnut expellers under a contract with suppliers who were the sole producers of the . .
Cited – Atisa SA v Aztec AG 1983
The sellers sold to the buyers 13,000 -14,000 tonnes of Kenyan white crystal sugar fob stowed Mombasa, subject to the rules of the Refined Sugar Association including that the sellers were to obtain an export licence and that failure to obtain such . .
Lists of cited by and citing cases may be incomplete.
Contract
Updated: 14 April 2022; Ref: scu.259325