untitled

Discharge of contractual liability 141

entitled to refuse to accept delivery. The defendant had waived his right to receive delivery
on 20 March, but had given reasonable notice that delivery had to be made by 25 July. If the
claimant had tried to deliver at any time before 25 July the defendant would have been
bound to accept the delivery.

Discharge by frustration

A contract may become frustrated if it becomes impossible to perform, illegal to perform or
radically different from what the parties contemplated. Before we examine these three
grounds on which a contract may be frustrated, it is important to notice that we are talking
about a valid contract becomingillegal, impossible or radically different. If a contract is
impossible to perform when it is made then it may be void for mistake. If a contract is
illegal to perform at the time when it is made then it is an illegal contract and will therefore
be void. If the contract was, at the time of making the contract, radically different from what
the parties intended then it may be void for mistake. Both mistake and illegal contracts were
considered in the previous chapter.

Impossibility of performance

If a contract becomes impossible to perform then it will be frustrated.

If a party who has contracted to perform the contract personally dies or becomes too ill to
perform, the contract will be impossible to perform. It will therefore be frustrated.

Taylor vCaldwell (1863)

A music hall was hired out for four days. Before these days came around the music hall was

accidentally burnt down.

HeldThe contract was frustrated.

CommentThe contract would not have been frustrated if the music hall had been sold,

not hired, and had burnt down immediately after the contract. The buyer would have got

ownership of the hall and his hall would have burnt down. A contract to sell unascertained

goods, such as 100 new DVDs, will not be frustrated if the DVDs which the seller intended

to use to perform the contract are destroyed before the DVDs are delivered. If ownership

of the DVDs had passed to the buyer then it would be his loss and if it had not yet passed

it would be the seller’s loss. Either way, the contract would not be frustrated. If specific

goods, such as a particular second-hand machine, are sold then it is possible, but very

unlikely, that the contract could be frustrated under s. 7 of the Sale of Goods Act 1979. Almost

always, however, the contract would not be frustrated. The Sale of Goods Act rules on

frustration are considered in Chapter 7. There it will be seen that frustration under the SGA

is quite different from common law frustration, which we are considering in this chapter.

Condor vThe Barron Knights Ltd (1966)

When the claimant was 16 he became a drummer with the defendant band. His five-year

contract obliged him to work seven nights a week and sometimes to do two performances

in one night. One month after joining the band the claimant collapsed and was taken to a

t