the whole contract is not necessarily void, and severance may be
possible; the court may strike out offending words leaving the rest
intact; a slightly more relaxed approach may now interpret the clause in
a way that makes it reasonable – Littlewoods v Harris.- Examine the effect of European Law.
Chapter 14: Discharge of a contract
Question 1
(a)This is a question on discharge. You should briefly introduce the topic
of discharge, and point out that, as a starting-point, there may in each
case be a claim of breach of contract. The idea of frustration is, then,
an alternative to breach, where neither party is at fault – where the
event causing the discharge is outside the control of the parties.- Define frustration and give an example, such as Taylor v Caldwell.
- Explain that frustration can occur through radical change in
circumstances (apply Knell v Henry.) - Consider the alternative argument where a contract still has some point
(Herne Bay) or is self-induced. - Discuss the legal effect of frustration in the provisions of the Law
Reform (Frustrated Contracts) Act (1943). - Consider how breach of contract operates and compare this with a
claim of frustration in Fern’s case. - Explain vicarious performance. Would this be satisfactory for Fern?
Question 2
Identify the issue of discharge of a contract and discuss the ways in which
this may occur: performance, agreement, breach, frustration.- Discuss Andrew’s proposal of an alternative as not amounting to
performance or agreement. - Explain that Bruce may be able to claim breach of contract, and that
Andrew may wish in turn to claim frustration. - Explain frustration more fully (Taylor v Caldwell, Krell v Henry) and the
restrictions on the doctrine, e.g. Herne Bay Steam Boat Co v Hutton,
Tsakiroglou v Noblee Thorl, Maritime National Fish v Ocean Trawlers. - Consider whether these apply to the facts of the problem.
- Compare frustration and breach as two methods of discharge, and
examine the consequences of each. To do this you will need to explain
the provisions of the Law Reform (Frustrated Contracts) Act 1943. - Apply this to the facts of the problem.
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