By a war-time order in council, an Austrian subject, who was an ‘alien enemy’, was prohibited from residing within certain specified areas, including the area where the leased premises were situated. He claimed that the tenancy contract was frustrated.
Held: Although he could not personally exercise a right of personal occupation, he could sub-let the premises and therefore there was no frustration. His personal occupation of the premises was not at the root of the contract.
Lush J said: ‘ As the contract could be performed without his personal residence, the fact that his personal residence was prohibited by the Order did not make the performance of the contract impossible. But there is, I think, a further answer to the contention. It is not correct to speak of this tenancy agreement as a contract and nothing more. A term of years was created by it and vested in the appellant, and I can see no reason for saying that because this Order disqualified him from personally residing in the flat it affected the chattel interest which was vested in him by virtue of the agreement.’
Lush J
[1916] 1 KB 20, [1914-15] All ER 593
England and Wales
Cited by:
Cited – Gamerco Sa v ICM Fair Warning (Agency) Ltd and Another QBD 31-Mar-1995
The plaintiff Spanish concert promoter, and the defendant rock group, Guns ‘n’ Roses, agreed to provide a concert at the stadium of Atetico Madrid, but shortly before it was due to take place, the stadium was deemed unfit, and its licence withdrawn. . .
Lists of cited by and citing cases may be incomplete.
Contract, Landlord and Tenant
Leading Case
Updated: 01 November 2021; Ref: scu.564155