The parties had contracted for the construction of an estate of houses and flats to be followed by the interim purchase by the defendants. The defendants argued that the slump in land prices frustrated the contract and that they should not be called on to purchase the properrties at the price stated because they would be unable to sell without making substantial losses.
Held: The minimum prices scheduled were not a condition precedent to the carrying out by Barratt of the building works themselves. There was no express term to that effect anywhere in the agreement, and none was identified during the course of argument. Neither can the other terms of the agreement be read so as to give rise to such a condition. The possibility that prices would drop was within the anticipation of the parties, and not having made provision for it, they undertook the associated risk, and nor was there any identifiable supervening event.
However the request for summary judgment was refused because of the lack of clarity in the possibility that the claimant had accepted the defendant’s repudiatory conduct.
Coulson J
[2010] EWHC 323 (TCC), [2010] BLR 235
Bailii
England and Wales
Citing:
Cited – Investors Compensation Scheme Ltd v West Bromwich Building Society HL 19-Jun-1997
Account taken of circumstances wihout ambiguity
The respondent gave advice on home income plans. The individual claimants had assigned their initial claims to the scheme, but later sought also to have their mortgages in favour of the respondent set aside.
Held: Investors having once . .
Cited – Three Rivers District Council and Others v Governor and Company of The Bank of England (No 3) HL 22-Mar-2001
Misfeasance in Public Office – Recklessness
The bank sought to strike out the claim alleging misfeasance in public office in having failed to regulate the failed bank, BCCI.
Held: Misfeasance in public office might occur not only when a company officer acted to injure a party, but also . .
Cited – International Finance Corporation v Utexafrica SPRL ComC 9-May-2001
The defendant applied to have set aside judgement entered against him in default of acknowledgment of service.
Held: The authorities make it plain that, in order to satisfy the test for resisting a summary claim for for wrongful repudiation . .
Cited – E D and F Man Liquid Products Ltd v Patel and Another CA 4-Apr-2003
The rules contained two occasions on which a court would consider dismissal of a claim as having ‘no real prospect’ of success.
Held: The only significant difference between CPR 24.2 and 13.3(1), is that under the first the overall burden of . .
Cited – Nelson Line (Liverpool) Ltd v James Nelson and Sons Ltd HL 1908
Where there is in a contract an absolute promise with an exception engrafted upon it, the exception is to be construed strictly, and extends only so far as it is expressed with clearness and certainty. The parties to an agreement may contract . .
Cited – British Movietone News Limited v London and District Cinemas Limited HL 26-Jul-1951
Film distributors contracted to supply newsreels at a cinematic theatre. The contract was for a minimum of 26 weeks, and after on termination by the distributors on four weeks notice thereafter, but by the cinema on four weeks after the first month. . .
Cited – Smallman v Smallman CA 1972
An order was sought under the 1882 Act to decide the shares in which the family home was to be held. An overall agreement had been negotiated in correspondence between solicitors that W should have a half share in the proceeds of sale of the . .
Cited – Davis Contractors Ltd v Fareham Urban District Council HL 19-Apr-1956
Effect of Contract Frustration
The defendant appellants contended that their construction contract was frustrated because adequate supplies of labour were not available to it because of the war.
Held: The court considered how the frustration of the performance of a contract . .
Cited – Krell v Henry CA 1903
Mr Henry contracted to rent a flat located on Pall Mall from the plaintiff, Paul Krell for the daytime and on the days of the forthcoming cornation procession.. He was told that he would have an excellent view of, but this was not written down. He . .
Cited – Maritime National Fish Ltd v Ocean Trawlers Ltd PC 12-Apr-1935
(Nova Scotia En Banco) The parties contracted for a charter of a fishing ship. It then became unlawful for a ship to use otter trawl, the only equipment available to the ship, without a licence, but the number of licences was restricted and did not . .
Cited – CTI Group Inc v Transclear Sa CA 22-Jul-2008
The court rejected a claim for frustration. Numerous authorities showed that the fact that a supplier chose not to make goods available for shipment, thus rendering performance by the seller impossible, was not of itself sufficient to frustrate a . .
Cited – Davis Contractors Ltd v Fareham Urban District Council HL 19-Apr-1956
Effect of Contract Frustration
The defendant appellants contended that their construction contract was frustrated because adequate supplies of labour were not available to it because of the war.
Held: The court considered how the frustration of the performance of a contract . .
Cited – Edwinton Commercial Corporation and Another v Tsavliris Russ (Worldwide Salvage and Towage) Ltd (the Sea Angel) CA 12-Jun-2007
The court considered whether a delay of some three or so months towards the end of a short (20 day) time charter, caused by reason of the unlawful detention of the vessel by port authorities, in a salvage context, has frustrated that charter. . .
Cited – McAlpine Humberoak Limited v McDermott International Inc 1992
The fact that the parties have foreseen the event but not made any provision for it in their contract will usually, but not necessarily, prevent the doctrine of frustration from applying when the event occurs. . .
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 – National Carriers Ltd v Panalpina (Northern) Ltd HL 11-Dec-1980
No Frustration of Lease through loss of access
The tenant’s access to the premises was closed by the local authority because it passed by a derelict and dangerous building. The tenant argued that its tenancy was frustrated.
Held: The lease was not frustrated. The lease had a term of ten . .
Cited – Pioneer Shipping Ltd v BTP Tioxide Ltd (‘The Nema’) HL 1982
There is no fetter on the judicial discretion to refuse leave under Section 1(3)(b) to appeal against an arbitration award.
Frustration of a contract is ‘not likely to be invoked to relieve contracting parties of the normal consequences of . .
Cited – Suisse Atlantique Societe d’Armement Maritime SA v NV Rotterdamsche Kolen Centrale HL 1966
No magic in the words “fundamental breach”
There is no rule of law which prevents parties to a contract agreeing to limit their respective liabilities. It is a question of the construction of the particular clause as to whether it applies to a fundamental breach or not. The court doubted the . .
Cited – Federal Commerce Ltd v Molena Alpha Inc; (The ‘Nanfri’) CA 1978
The court considered whether claim as against a shipowner could be set off against sums due under a time charter hire.
Held: Save for any contractual provision to the contrary a tenant is entitled to deduct from the rent payable, so as to . .
Cited – Latvian Shipping Company and Others v Stocznia Gdanska Sa CA 21-Jun-2002
A payment condition was just that and that a failure to pay entitled the seller to terminate at common law. Rix LJ said: ‘It is established law that, where one party to a contract has repudiated it, the other may validly accept that repudiation by . .
Cited – State Trading Corporation of India Ltd v M Golodetz Ltd CA 1989
Kerr LJ said: ‘What is commonly referred to as an acceptance of a repudiation must be communicated to the party in breach or at least overtly evinced. . An unequivocal act which is inconsistent with the subsistence of the contract may be sufficient, . .
Cited – Federal Commerce Ltd v Molena Alpha Inc (The Nanfri) HL 1979
The charterers of three ships on time charter had made deductions from time charter hire payments which the shipowners regarded as unjustified. In retaliation the shipowners purported to revoke the authority of the Charterers (to be implied under . .
Lists of cited by and citing cases may be incomplete.
Contract, Land
Updated: 01 November 2021; Ref: scu.402487
