However, if there is still some point to the contract, the court may hold that
it should continue. This was the finding in another coronation case.
Limits to frustration
Because frustration is often used as a kind of defence to breach, and can
result in a beneficial sharing of loss, there could be attempts to claim
frustration where there is not a genuine basis for it. Similarly, if the doctrine
was allowed too easily, the number of instances could be huge (the so-
called ‘floodgates’ argument). The courts are therefore wary of allowing a
claim too easily, and have shown through case law that there are defined
limits within which the doctrine may be claimed. So, for example, a person
claiming inability to perform through illness would have to show that the
illness was substantial and genuine, and a person claiming radical change
would have to show that the contract was now futile, not just less than
expected (see Herne Bay v Hutton, above).
Where a contract is merely more onerous, that is more difficult, more
expensive, or takes longer to perform, then it will not be frustrated. This
means that in many cases the courts feel that parties should take more care
in planning contracts. This may well be true with hindsight, but can be
harsh where circumstances are genuinely unforeseen.
218 Contract law
Krell v Henry (1903)
A room was hired overlooking the coronation procession route, to
provide a good view of the procession. Since this was the only purpose
for hiring the room, it was no longer required when the procession was
cancelled. An empty room overlooking a street in London was so
radically different from one overlooking the route of the coronation
procession that the contract was held to be frustrated.Herne Bay Steam Boat Co v Hutton (1903)
A boat was hired to watch the naval review which was to take place as
part of the coronation celebrations, and then for a trip around the bay.
It was found that the pleasure trip could still be enjoyed, even though
the King’s review of the fleet was cancelled. Because there was still
something to be gained from the contract, it was not totally different
from the original agreement, and the contract was therefore held not to
be frustrated.The question could be raised as to what proportion of the contract must be
pointless.What if the naval review was scheduled to take three hours, and a
pleasure trip around the bay lasted for ten minutes?