Application of doctrine of frustration of Charter Party in English Common Law in the phenomenon of global financial crisis

- Shaikh Md Mujahid Ul Islam

contract_drafting

Published On - November 8, 2016 [Vol. 5, Jul - Dec, 2016]

Introduction

The basis of doctrine of frustration is confusing, and questionable and through the whole twentieth century  and beginning of twenty first century the application of this principle in charter party is so vague and speculative which creates difficulty to take any conclusive decision on the application of it in particular events. The English courts faced with the flurry of frustration problem during 1st world war, subsequently Spanish Civil War, Suez Crisis of 1956 and later the Iraq –Iran war.[1] In those four events the English courts mostly showed reluctance to apply this doctrine of frustration and their theoretical basis rested on the doctrine of absolute performance of contract and their interpretation went through in a very restricted manner considering only the obligation of the parties in accordance with the charter party and basing on the allocation of risk between the parties.

On the other hand another trend in the English Courts was started to apply  doctrine considering the possibility of the performance of  shipping contract and considering the practical fact and circumstances of the happening of the particular event to get reasonable and just result and their theoretical basis was the doctrine of implied term, principle of just and reasonableness. In this trend this is most significant to recognise the role of famous judge L.J Denning who applied this doctrine of frustration in some cases like Kissavos Shipping Co SA v Empresa Cubana de Fletes (The Agathon)Agathon, The  Court of Appeal (Civil Division) [1982] 2 Lloyd’s Rep. 211; and Kodros Shipping Corp of Monrovia v Empresa Cubana de Fletes (The Evia) [1982] 1 Lloyd’s Rep. 334; [1982] Com. L.R. 44. During this debate in the legal literature of doctrine of frustration, the question of application of this doctrine is also focused at the very beginning of twenty first century for the unexpected events which came through recent financial crisis. At the beginning of the twenty first century Global Financial Crisis affected the international Shipping trade severely which creates some unwanted consequences in the performance of the contract. Usual consequence of this crisis is charter rate reduction, freight rate reduction, falling of demand of containerised ships etc.[2] In order to avoid his unexpected circumstances the party in a bad bargaining position started to find out the ways of avoidance of performance. In some cases they started to re negotiation the charter party or to make supplementary contract or apply force majeure clause or repudiate the charter party.   This issue when came before the court, the parties tried to use the application of doctrine of frustration as shield for avoiding the performance of contract.[3] Common Law court rejected the application of the doctrine of the frustration in those cases basing on the principle of allocation of business risk to the parties.

Over the few years there is a lot of discussion in shipping trade to find out the ways to solve the problems. The scholars showed some ways like renegotiation, force majeure to solve it.

 In this article firstly I will try to find out the scope of application of doctrine of frustration in the events critically examine how the Common Law courts can apply this doctrine of frustration in shipping trade cases where one party in the contract is in such bad bargaining position that the performance of the contract is economically impossible to perform for financial crisis. In my article I will present basic concept of frustration and the development of the frustration with the historical and theoretical perspective.; 2ndly the discussion goes on the events caused by financial crisis and the scope of application of the doctrine of frustration in those events and lastly I will recommend some measures to solve the confusion arising from the scope of the application of frustration.

Concept of frustration

In order to clarify the understanding of the scope of application of the doctrine of frustration and limitation of it this is necessary to illustrate briefly the concept of frustration. For the conceptual wideness scholars showed reluctance to define it. But since the end of the 19th century the doctrine of frustration has been articulated in the English Common Law and learned judges of English Courts tried to explain this in their own perspective. But the most acceptable statement regarding the doctrine of frustration was given by LJ Radcliff in Davis Contractors Ltd.  V Fareham U D C[4]:

“Frustration  occurs  whenever the  law  recognizes  that  without default of either  party a  contractual obligation  has  become  incapable  of being performed  because  the  circumstances  in which  performance  is  called for  would  render  it  a  thing  radically  different  from  that  which  was undertaken  by the  contract.  Non haec in foedera veni-it was not this that I promised to do.”[5]

Through this statement Lord Radcliff focuses a situation where the parties become incapable of performing the contract as the conditions have been radically changed and the situation is recognised by law. This explanation of the doctrine of frustration gets more acceptability in the later period when the English Courts mentioned this explanation to interpret this doctrine.[6]

In order to explain this doctrine Lord Weight tried to explain this as  flexible doctrine and this will not be subject to any arbitrary formula and he advocated for the use of this doctrine to get just and reasonable solution.[7]L.J Bingham tries to explain the object of this doctrine as to achieve a just and reasonable result.[8]

Lastly in concluding remarks of this point it can be said that the concept of frustration is not at all centralised and concentrated and straight forward to explain by some quotations of some judges. For full understanding we have to understand the perspective of its use and historical perspective.

Doctrine of absolute performance of contract

 Before 1863 this is very difficult to find any precedent in English Law to allow the non performance of the contract.[9] Generally the English law was totally based on the absolute performance of contract (Pacta sunt servanda). Under this doctrine contractual duty is regarded as absolute and the supervening events provides no excuses for non performance.[10]

 The most cited case to support the position of English law of absolute performance of contract is Paradine v. Jane[11]. Though this case is often designated as first case, this was a curious case which looked more like an unsuccessful early plea of partial frustration of a lease.[12] The case arose in 1643 while the Royal Army took possession of the land of the plaintiff Paradine which was leased out to the defendant Jane. The force stayed there for 3 years and left that in 1646. Subsequently the plaintiff brought a suit for arrear of rent   against the defendant. The defendant took the plea that the defendant did not earn from the property as he was out of the property for three years and he could not claim compensation against them as they were out of the jurisdiction. The Court held that the plea of the defendant was insufficient as a matter of law and court relied on the general principle that the party is bound to perform the contract if the party is obliged to perform it according to the contract.

Though this case is mostly cited to express the absolute obligation to perform the contract, there is debate about its authority and the interpretation of it.[13] Professor Corbin cited this as the historical recognition of the contractual obligation of the parties.[14] On the other hand Professor Brian Simpson disagreeing with its authority tried to establish that Medieval English law recognised the non performance of the contract as an excuse if the act became impossible to perform by the act of God.[15] In spite of that argument this can be said that till 19th century the Common law courts kept its previous position in question of performance of Contractual Obligation.

Application of the doctrine of frustration in events of financial crisis

The object of this point is not to suggest any straight forward way to apply the doctrine of frustration in the events arising out of financial crisis as basically there is diversified impact of the financial crisis in shipping industry. The object of this point is to find out the scope of the application of this doctrine of frustration in the cases where one party has fallen in an unbargained position for the drastic change in the market, what no party has anticipated at the time of making the contract. Here I am trying to analyse critically the cases where English courts interpreted doctrine of frustration in the dramatic change of economic situation which was totally unpredictable, into the following sub heading:

  • Common law Position of strict performance

The most of the precedents of Common law in 20th century shows the trend that the contracting parties are bound to follow the contract strictly, especially in the commercial transaction. The Shipping contracts are basically commercial in nature and the previous trend of Common law also treated this Commercial maritime adventure with this strict following of the contract. This is very common and popular argument that the parties of the contract are engaged in contract to do profit and naturally one party will make profit and the other party may suffer loss. Here one party who anticipates the loss suffers more loss for the following of the contract which is a business risk and naturally the party will bear that risk.

  • Excuses for non performance of contract

This is evident  that the English law in the 20th century not only  suggested the absolute performance of the contract, but also suggested the excuses  for the  performance of the contract for the impossibility of the performance even in the commercial maritime  venture.[16] Moreover the English Courts showed different reasons for the impossibility of the performance of the contract like delay, extinguishing the subject matter of the contract, radical change of the situation which can frustrate the contract of the parties.  In the Davis case[17] L.J Radcliff in his famous judgement explained the frustrating event in such a way where “the contractual incapable of being performed because the circumstance ……………radically different from that which are undertaken to perform”.[18]  This “radically different” test for applying the doctrine of frustration is being followed by the English Courts till now which I have mentioned earlier. Moreover in another famous earlier case Taylor vs Caldwell[19] J Blackburn  explained the frustrating event  recognising the implied condition theory where he excused for the performance of the contract where the particular performance is dependent of the continued existence of the  given person or things.

 The conflicting two trends (absolute performance of contract and non performance of contract) in common law dominates over the last century for applying this doctrine of frustration.

Recommendation to solve the difficulty

Though in the previous chapter through the interpretation of different theories I have shown the justification to apply the doctrine of frustration in the events which make the performance impossible caused by financial crisis, But this is hardly possible to remove the difficulty to this application in the events of financial crisis through the current common law legal position. Main difficulty is that in common law this is hardly possible to reconcile perfectly all doctrines which different judges applied in different cases. On the one hand common law strictly follows the doctrine (Pacta sunt  servanda) of performance of contract strictly and on the other hand through the application of the theory of implied term  or impossibility of performance common law allows the excuses to the application and over the year the application of it was so complicated which made the parties confused . For example in one hand in Sea Angle case LJ Rix applies the doctrine as multi factorial consideration[20], on the other hand some courts relies on the doctrine of reasonableness and justness.[21] Or some courts did not take economic consideration to apply this doctrine. For these reasons I recommend the reform in the law of frustration through court and through legislation. Moreover the draft man of the charter party in the case of making the contract can also make some reforms at the time of drafting the charter party. In the following I am going to discuss about the proposed reforms in this sector which can facilitate in the application of the doctrine in the events caused by financial crisis.

Reform through legislation

This point has been illustrated through the following sub heading:

  • Proposal for New Legislation

 My first proposal is to reform the law of frustration through legislation. Scholarly  tests  for application of the doctrine of frustration are  either  too  strict,  too  objective  or too  subjective,  are  sometimes  vague,  and  it  is  often  difficult to  comply  with them.[22]  Moreover viable practical standard of application of frustration which can satisfy the uniformity and consistency in practice is hard to find in English law mostly for the dissimilar standard of contract, lack of uniformity in the precedents, employing different tests for application.

 As a result the application of this doctrine of frustration in the events of financial crisis is complicated and confusing. A proper statute instead of these dissimilar scholarly tests can reduce this complicacy and confusion. The modification of common law by legislation is not a new one. In this case I can give example of Law Reform (Frustrated Contracts) Act 1943 which was enacted in the parliament with the object of amending common law principle which determined the rights and liabilities of the parties in frustrated contract. This law has the back ground of two cases which I have mentioned earlier which facilitated injustice.[23] Moreover it is relevant to present here some legislation regarding the application of doctrine of frustration in other nations. If we examine art 119 of the code of obligation in Switzerland, we can find that law fixed extinguishment of the performance of the contract because the performance becomes impossible for the circumstances.[24]

 In support of my argument I want to present the example of USA. In USA basically two laws deals with the Rule of discharge; one is Restatement of contract and another is section 2-615 of the Uniform Commercial Code. These two laws in USA have covered the excuses for the non performance of contract (doctrine of impossibility of performance and impracticability of performance of contract).  The two laws have been modified day by day for the necessity. The movement for modification of these laws got its force when in 1975 the USA economy experienced a severe recession which impacted all commercial transaction. Thomas R. Hurst in one of his article proposed for amendment of the section 2-615 of Uniform Commercial Code for proper reallocation of risk and for proper application of the doctrine of frustration in the perspective of Economic recession in USA.[25] Subsequently these laws have been changed by restatement (second) of contract 1981 and Amendment of section 2-615 of Unified Commercial Code in 2003 which give more clarity in the application of this doctrine. On the other hand in Common Law the doctrine of frustration is still in confusing position which contradicts in the application of this doctrine.

So, In consideration of these legal examples it can be said that to remove the contradiction, vagueness in the application of this doctrine, a statutory form of the doctrine of frustration will be helpful.

  • Proposed Features of new legislation

The main difficulty for this reform is that the application of this doctrine is such multi dimensional and multi factorial and dependent on different dissimilar standard of contract which is difficult to cover under an umbrella of a single statute. Recognising that difficulty I am suggesting to present basic feature of the proposed statute which would prevent the basic confusion in the application of this doctrine and the proposed statutory features are as follows:

1. The legislature can consolidate the basic grounds of frustration which are common over the last centuries. It seems to me that the codifications of these grounds are necessary to illuminate the confusion of application of the doctrine of frustration. Because in order to apply this doctrine different English Law courts relied on different scholarly test that is to some extend contradictory to each other which unhesitatingly creates confusion in the application of doctrine of frustration. If the basic grounds for applying this doctrine would be codified, the risk of confusion could be reduced. Truly the codification cannot give the uniform application of this doctrine because the application of the doctrine of frustration depends on the effect of the particular events and the proximity of that event. But the codification will be helpful for the uniformity of the interpretation of the doctrine in the same set of circumstances.

2. Economic consideration is a useful consideration for applying this doctrine especially where the contract is economically impossible to perform for the parties. Statute can fix the extent of applying the doctrine of frustration where the contract is impossible to perform in economic point of view. The approach of common law is that where the change of circumstances is such that put one party in bad bargain, the doctrine of frustration cannot be applied. This is justified as the parties accept this business risk at the time of signing the contract. The legislation can fix this as a basic rule to the application of the doctrine of frustration. Then legislation can fix some exceptional circumstances where it can allow the application of this doctrine considering the circumstances where the performance of the contract is impossible in economic terms.

3. Law can also establish the criteria to fix what will be the rights and liability of the parties in the frustrating events. In the mid 20th century Reform of (Frustrating Contract) Act 1943 was promulgated to fix the rights and liabilities of the parties in the particular events. Common Law is very strict about the effect of frustration and that is termination of contract. There is no standard of practice about the rights and liabilities of the parties after the termination of contract. This is unfair for one party. Because where promisor is excused from the performance of the contract, the loss shall be incurred by the promise which is unfair to him.[26]  The proposed Law can establish a proper standard for reallocation of risks even after the contract being frustrated where justice demands it.

4. There may have many events where the performance of contract is suspended for a particular time. Like the delay of the performance of contract which can postpone the performance of contract for a particular time. Here it can be proposed that law can incorporate these events which does not terminate the contract, but suspend the performance of event for the particular time. In Support of it we can propose the Professor Schmitthoff’s opinion who suggested this “minor Frustrating Events” to incorporate in all national legislations which can postpone the performance of contract as this can facilitate the uniformity of all the legislation.[27] G Rapsonmanikis welcomed his suggestion of this adoption of “minor Frustrating Events” as it is satisfying important Commercial need.[28]  In our point of discussion I welcome this incorporation of “minor Frustrating Events” in the proposed national legislation because this will facilitate certainty in English law which will be helpful for proper application of the doctrine of frustration. But one thing should be bear in mind that the list of these minor frustrating events cannot be exhaustive. Otherwise this will create dead lock in future.

After all the discussion it can be said that if the reform through  proper legislation is made in those sectors, the confusion of the application of this doctrine  will be reduced and this will reduce contradiction in its application and reduce confusion among parties and parties can get a basis upon which they can rely.

Reform through Charter Party

The reform through the parties is very important for proper application of the doctrine of frustration in the events caused by financial crisis. We know that charter party is to effectuate the desire of the parties through the terms and conditions of it which can reduce the scope of more negotiation in future and can distribute the future assumed risks arising from the uncertainty among the parties.  R. A. Posner & A. M. Rosenfield pointed out that the purpose of contract is to allocate the risk arising from future uncertainty between the parties to the exchange.[29] He  also  assumed  that  contract  law  can  be  shaped by  concern  with economic efficiency  which is  a  fruitful one  in explaining  the  doctrinal positions  and  typical  case  outcomes of that  law.[30] If the charter party is not drafted with proper codification of assumed excusable and non excusable risks, the party get the chance to make the defence of the application of frustration on the happening of events which could be covered by the proper construction of contract by the parties. So in order to reduce the risk arising from the application of the doctrine   proper construction of contract can play important role.

Proposals

My proposals on this regard have been presented in the following.

  • Enlisting excusable and non excusable risks

 On this regard one of my proposals is that parties can enlist the excusable anticipated risk and by which the parties will have the option to cancel the charter party. This concept is termed in Civil Law as Force majeure clause. English law does not prevent the parties from applying this clause. Along with usual excuses like act of god, war, Industrial Actions/ strikes etc, the draft men of charter party can enlist the economic risks like unavailability of goods, drastic change in market condition, problems in International banking transaction (denying of opening L/C  by Bank) in the charter party. If in the charter party the parties include a clause containing these anticipatory financial risks which can make the performance economically impossible, they can allocate the risk of the happening of those events at the beginning of the contract which will reduce the future uncertainty for these events.

Here this is relevant to mention professors Berham’s “enumerative test” which he expressed to solve the problems of frustration in International trade law where he argued that the contractual practice in contract in international contract for sale is to list number of contingencies in the trade contract to the draft men of the contract with an intention that all other contingencies should be borne by ship-owner.[31]The main weakness of this proposal was expressed by M.G. Rapsonmanikis where he said that this imposes heavy burden and forces the draft man of the parties to make a non excusing list.[32] Secondly the effect of the event is probable (War can leave the contractual purpose unaffected or can destroy it as a whole).[33] Moreover listing of these anticipated events cannot solve the frustration problem, as the question of frustration arises in unanticipated events. Moreover the methodological approach namely:  solution  of the  problem  of frustration  in  international  trade  through  autonomous  principles,  to  the  exclusion  of general contract  law  rules  is unacceptable.[34] So the theory of Berham cannot be acceptable as alternative of general principle of frustration.

 But my proposal to enlist the excusable or non excusable contingencies can play important role as supplementary of the frustration principle. My proposal is that the parties should deploy their prudence and due diligence to incorporate all the commercial economic risks and try to allocate the risk among them through contract. It can be said that if the parties to the charter party incorporate the tentative economic risks which can arise from any future event and if the parties express in their contracts the ways to handle it, this can reduce the future chance of frustration of contract.

Reforms through court

Common law is based on case law. If we examine the development of the law of frustration in common law it mostly comes through the interpretation of the courts in different cases. So negating the role of courts and without reforming the legal practice in the interpretation of court, the true application of the doctrine of frustration in the events caused by financial crisis will not be satisfactory. Here I will not suggest any specific suggestion for application in particular events, but I suggest some changes in the practice and attitude of the common law courts to the doctrine of frustration. My recommendations are as follows:

  • Adoptable and Flexible

The Common Law courts should be more adaptable and flexible in deciding the issue of frustration. In the past two centuries the English Courts strictly saved the sanctity of contract which is based on its strict stand of application of the absolute observation of the contract. In contrast English Courts also allowed the application of the doctrine of frustration which relieved from the performance of the contract in the exceptional circumstances in a narrow sense. In the last centuries courts mostly applied this doctrine putting its emphasis on the legal analysis of it which was based on some theories like doctrine of implied condition, doctrine of construction of contract and applied this doctrine in a very narrow sense.

On the other hand there was another trend in the English cases where Courts treated the doctrine of frustration flexibly. The stand of LJ Bingham in Super Servant Two case or Lord Justice Denning in Evia case or recently  LJ Rix in Sea Angle case( principle of multi factors)  are the examples of the adaptability in case of application of this doctrine of frustration. The issue of the application of the doctrine of frustration in the events caused by financial crisis depends on so many factors that the court must have to be flexible and adaptive to decide on that.   In order to handle the unexpected events caused by the financial crisis application of this doctrine should be made in such a way so that it can harmonise the rights and duties of the contracting parties.  So Common law courts should be flexible and adaptive to handle it.

  • Reform in Interpretation of Contract

 The reform should be made in its interpretation of the contract.  Common Law courts usually interpret the contracts with the equitable adjustment within the ambit of sanctity of contract and to do so courts usually use its discretion. Courts have a heavy burden to apply the rule of absolute liability with the rule of discharge which is totally opposite to the first one. In the 20th century in some cases courts recognised the rule of discharge and decided on it upon relying on its own interpretation though this is not contemplated in the contract of the parties.[35] Thomas R. Hurst pointed out that because of the hardship result of the absolute liability of the performance of contract Courts came to recognise certain circumstances where the contractual obligation might be discharged even though the parties had not provided for discharge in the contract.[36] So courts should be more cautious in the interpretation of the charter party for applying the doctrine of frustration in the events caused by financial crisis so that it can adjust the rights and duties of the parties to it.

  • Judicious Exercise of Discretionary Power

 The reform through court will come through the exercise of the court’s judicious exercise of its discretionary power in case of application of this rule of discharge in the events caused through financial crisis. Thomas R. Hurt illustrated the function of courts in the application of impossibility  in the events arising from the  financial crisis in USA on 1975 as on the one hand the judicial use of the doctrine of impossibility is necessary in some instances to prevent the promisor  from  incurring  substantial  liability  against which  he could  not reasonably  have protected himself and which the parties never contemplated  when the  contract  was  formed and on the other hand excessive utilisation of impossibility defence poses the threat that the promisor relieved  from liability  on contracts  in situations in which  it  was  assumed that  he would  take  steps  to  guard  against the  contingency  that  rendered  performance  impossible.[37] About the exercise of discretionary power of court he said that the doctrine  of impossibility,  if not  used with discretion,  may  be used to reallocate  business  risks  and discourage  the  promisor  from  taking  reasonable  precautions  to  ensure that  he will  be able  to perform the  contract.[38]  In the event arising out of financial crisis The Common law Courts should have to exercise the doctrine of frustration through their discretionary power in order to make balance of interest of the two parties and in applying that the court have to be careful about the risk of the excessive exercise of this doctrine which poses threat in the sanctity of contract.

Conclusions

I have tried to argue in my whole writing that firstly in English Law the parties have the scope of application of the doctrine of frustration in the events of financial crisis in spite of the vague subjective or objective scholarly test to apply it in a particular event.  My second argument was that the vagueness of the standard of application of the doctrine could be reduced by the reform of three groups which can give certainty and consistency rather than inconsistency in the decisions.  From the analysis of first part of this article, it can be concluded that the doctrine of frustration in the English Law has been developed in the midst of the application of two scholarly doctrines; one is absolute performance of contract and excuses for non performance of contract and the English Courts applied this doctrine basing on many dissimilar standard which hardly shows the viable standard of uniformity in practice of application of this doctrine.

From the analysis of the second part conclusion can be drawn that the recent financial crisis is so unique and dramatic and unpredictable and it was affected in such a way to the financial market which made the performance economically impossible to perform where no parties have particular default and considering the uniqueness and proximity of the effect of the financial crisis upon the parties and economic impact of it over it, this may be an arguable case to apply the doctrine of frustration in some events arising out of the financial crisis though there is substantial difficulty to this application.

In the 3rd and final part we can reach to the conclusion that reforms through the legislation, parties and through court can help us to remove the confusion and gloominess in the application of this doctrine of frustration in the events arising out of financial crisis. Through legislation the doctrine of frustration can get a framework for proper application; through reform by parties, the parties at the time of drafting of charter party can employ their commercial knowledge to cover all the future uncertain commercial events and its effect in charter party and though the reform in the practice of the court English Courts should be more adaptive to the proper application of the doctrine of frustration in the events of financial crisis.

In my final remark I want to compare this doctrine of frustration with sharp knife which we can use either to slaughter one or to cut an apple. In the same way doctrine of frustration is such a sharp legal weapon which can be used either in a positive way considering the rights and liabilities of both the parties or in a negative way without considering the practicality and without considering the impact after its application. I think that the proper positive use of this doctrine in the events caused by financial crisis can play an important role to handle this unexpected event and my suggestion to reform will facilitate the positive use of it and can ensure legal certainty in English law.

[1] Bernard J. Hibbits,“The Impact  of the  Iran-Iraq  Cases on  the  Law

of Frustration of Charter parties”1985 16 Journal of Maritime law & Commerce 441

[2] Samaras, E.M. Papadopoulou “The Global Financial Crisis – The Effects on  the Liner Shipping Industry and the Newly Adopted Leading Practices “ published in 1st Olympic International Conference On Supply of Chain 1-2 Oct,2010.

[3] CTI Group Inc vs Transclear SA(the Mary Noor) (2008) EWCA civ 856

[4]  Davis Contractors Ltd.  V Fareham Fareham Urban District Council [1956]  A.C. 696

[5] Ibid  726

[6]  See Pioneer Shipping Ltd. v. B.T.P. Tioxide Ltd. (The Nema), [1981]  2  Lloyd’s  Rep. 239,  253, see also   Edwinton Commercial Corporation, Global Tradeways Ltd vs Tsavliris Russ(worldwide Salvage and tawage )sea angle case (2007) EWCA Civ 547

[7]  Denny, Mott & Dickson,  Ltd.  v. James  B. Fraser  & Co.,  [1944]  A.C. 265, 274-76

[8] See T. Lauritzen A.S vs Wijsmuller B.V (Super Servant Two)1990 1 Lloyd’s Rep 1

[9]See Taylor vs Caldwell(1863) 3 B&S. 826

[10] Edwin peel,The law of contract  13thed (Sweet&Maxwell,2011)  920-921

[11] Paradine vs Jane [1647] EWHC KB J5

[12] Albert Kiralfy, “Absolute liability in contract”, 1980 The Journal

of Legal History, 1:1, 89-93

[13] See J.H. Schelegel“Of Nut, impossibility Of performance. Of Contract”(1968-1969). 23 Rutgers Law Reviw. 419

[14] L.Corbin:Contracts(1952)  1332

[15] A. Simpson, A History of The Common Law of Contract (Oxford: Clarendon Press,1975) 30-33 ,   see also John D. Wladis (1987)”Common Law, the Development of  Doctrine of Impossibility of Perform. In Eng. Common law, available at http://works.bepress.com/john_wladis/13 last visit 31/7/12

[16] See Evia case 1982 1 Lloyd,s Rep 334, nemo case 1981 2 Lloyd’s Rep 239, 253,

[17] See Davis[1956]  A.C.  696

[18] ibid

[19] See Taylor (1863) 3 B&S. 826

[20] See  Sea Angle 2007 EWCA  civ 547 para 118

[21] See Super Servant Two (1990) 1 Lloyd’s Rep 1

[22] Michael G. Rapsomanikis, “ Frustration  of Contract  in International

Trade Law and Comparative Law”1979-80 18 Duquense Law Review. 551

[23] See Fibrosa [1942] AC 32 and

[24] Federal Act on the amendment of  Swiss Civil Code 1911

[25]Thomas R. Hursti, “Freedom of contract  in an unstable economy: judicial reallocation of contractual risks under section 2-615”1975-76   54 New Columbia Law Review  545

[26] Ibid p 578

[27] Schmitthoff, “ Frust. of International.  Contract.  of Sale  in English and  Comparative Law, in some prob. Of non-perform.and   Force-majeure in international contract. of sale” Int’l Ass’n of Legal Science,  Helsinki,  1961 p 157

[28] Rapsonmanikis, “ Frustration  of Contract” (1979-1980) 18 Duq. L. Rev. 565

[29]R.A. Posoner & A.M. RosenField, “Impossibility and related doctrines in contract laws, an economic analysis” 1977  6 Journal of  Legal Studies. 88

[30] ibid

[31] See  Berman, “Excuse for  Non performance in the  Light of Contract  Practices in International Trade”1963  63 Columbia Law Review  p 1415

[32]  See Rapsonmanikis, “Frustration  of Contract” (1979-1980) 18 Duq. L. Rev. 565   p 562

[33] See  Travaux  du  CoUoque de L’Association  Internationale  des  Sciences  Juridi-ques, in Some problem  of   Non-performance  and force  majeure  IN  International contract  Of sale  261  (Int’l  Ass’n of Legal  Science,  Helsinki,  1961

[34] Thomas R. Hursti, “contractual risks under section 2-615”1975-76   54 New Columbia Law Review  545  p 559

[35] See Krell vs Henry [1903]  2  K.B. 740

[36] Hurst, “Freedom of contract  Under UCC sec. 2-615”  545

[37] Ibid p 549

[38] Ibid

About The Writer

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Shaikh Md Mujahid Ul Islam

LL.B(Honors) LL.M from University of Dhaka, LL.M in International Commercial Law (University of Glasgow)

Additional Chief Judicial Magistrate,Shariatpur. Bangladesh.

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