EN
TR
The past requirement of absolute performance is best demonstrated by the facts of…
“…where the law creates a duty or charge, and the party is disabled to perform it without any default in him, and hath no remedy over, there the law will excuse him… but when the party by his own contract creates a duty or charge upon himself, he is bound to make it good, if he may, notwithstanding any accident by inevitable necessity, because he might have provided against it by his contract”.(373)…
A distinction was therefore drawn between a legally imposed duty and a duty willingly…
However, the doctrine of frustration as applicable to contracts was eventually recognised…
Delivering the Court’s judgment, Blackburn J authoritatively stated the following…
“…in contracts in which the performance depends on the continued existence of a given person or thing, a condition is implied that the impossibility of performance arising from the perishing of the person or thing shall excuse the performance…that excuse is by law implied, because from the nature of the contract it is apparent that the parties contracted on the basis of the continued existence of the particular person or chattel”(375)…
Blackburn J gave the following reasoning and made the following important points…
• It was assumed on the basis of the available evidence that neither party could…
• The contract stipulated no express terms for such an eventuality, requiring the…
• It was established law that where a positive contractual obligation to do a thing…
• However, in circumstances where the contract is not positive and absolute, in the…
• The proposed implication of terms into the contract, according to Blackburn J,…
