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F.Self-induced frustration
The doctrine of frustration will not excuse a contracting party from the performance…
In The Super Servant Two, a contract had been entered into for Wijsmuller…
Before the time for performance, i.e. on 29 January 1981, the Super Servant Two became…
It must be noted that the carriage of the Dan King was ultimately performed by Wijsmuller…
The issue before the Court, as a preliminary issue, was whether the contract had…
The Court of Appeal held that the contract had not been frustrated. The principal…
“…the essence of frustration is that it should not be due to the act or election of the party seeking to rely on it…A frustrating event must be some outside event or extraneous change of situation… A frustrating event must take place without blame or fault on the side of the party seeking to rely on it”.…
What is required, according to Bingham LJ, is “a pragmatic judgment [focused on] whether a party seeking to rely on an event as discharging him from a contractual promise was himself responsible for the occurrence of that …
“Had the Dan King contract provided for carriage by Super Servant Two with no alternative, and that vessel had been lost before the time for performance, then assuming no negligence by Wijsmuller (as for purposes of this question we must), I feel sure the contract would have been frustrated. The doctrine must avail a party who contracts to perform a contract of carriage with a vessel which, through no fault of his, no longer exists. But that is not this case.”…
Wijsmuller’s election not to use the Super Servant One for the purposes of its contract…
In similar fashion, in The Eugenia 1964 Lord Denning MR explained that frustration cannot be pleaded in cases where the party invoking it is to be blamed for the happening. That was a case where the vessel (The Eugenia) was time chartered to carry a cargo of iron and steel “to India via Black Sea”.…
The vessel expectedly took the shorter route, despite the risk of closure being known…
The charterers argued that the charter has become frustrated. Their argument was…
Commenting on the self-induced frustration aspect, Lord Dening MR explained that…
Note that the burden of proving self-induced frustration is on the party alleging…
“If A (the party relying on frustration) proves events which prima facie would frustrate the contract, the onus of proving that the frustration was self-induced is on the other party (B) who denies that the contract has been frustrated.”…
E.Frustration of common purpose
G.Role of foresight
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