• Join over 1.2 million students every month
  • Accelerate your learning by 29%
  • Unlimited access from just £6.99 per month

Advising a Client : Contract Law

Extracts from this document...

Introduction

When advising A there are three fundamental questions that must be asked; Is the event capable of frustrating the contract? Are there any rules of law that would render the doctrine of frustration inoperative? What would be the effects if the contract were found frustrated? In addressing the first question it must be recognised that the hallmark of frustration is an event that occurs after the contract is formed that radically alters the foundation or renders it physically or legally impossible to perform. A simple example of this can be found in Taylor v. Caldwell (1863) 3 B. & S. 826 where a contract for hire of a music hall and gardens was found to be frustrated when the music hall burnt down. The object of the contract was ascertained as the hiring of the gardens and music hall for the purpose of using them to stage four 'grand concerts and fetes'. When the hall was destroyed by fire after the contract was formed, the performance was rendered physically impossible. Thus it is essential when considering frustration to identify the object of the contract and then to decide whether the intervening event radically alters this object. ...read more.

Middle

The next point to consider is whether there are any rules of law that would render the doctrine of frustration inoperative. Did either party foresee the supervening event, and could either party be assumed to have taken the risk that such an event might occur? It is rare that a party may seek to rely on an event that he has foreseen in order to claim frustration (see Walton Harvey Ltd v Walker & Homfrays Ltd (1931) 1 Ch 274). The reason for this is that in the absence of a provision in the contract to deal with such an event, one or other of the parties must be taken to have accepted the risk of its occurring. Therefore, the more foreseeable an event, the more allocation of risk occurs. The courts often distinguish between events that were foreseen and events that were foreseeable at the time of the contract. Where the events are foreseen the courts will usually find that a plea of frustration will fail. A rare exception to this approach can be found in the case of The Eugenia (1964) 2 QB 226 where Lord Denning MR found there was evidence that the parties intended 'to leave the lawyers to sort it out'. ...read more.

Conclusion

First it is not now necessary to prove a total failure of consideration, but more importantly where the payee has incurred expenses he may be allowed to offset the paid or payable sum by an amount not exceeding the expenses incurred when performing the contract before the frustration. It may be assumed in the present case that B has incurred considerable expense in the development of the equipment and it is likely that the court will find �5000 for three months work to be less than excessive recompense. On this point A should be advised that he might lose all of his deposit and may be required to pay even more. However, s 1(3) of the 1943 Act allows courts to award a 'just sum' where one party has obtained a valuable benefit under the contract. A can argue that clause four has conferred a valuable benefit on B by allowing him the extra business-generating kudos of being linked with A. There is little in the way of valuable benefit conferred on A that can offset this consideration, so it is contended that A may indeed recover some or all of the �5000 deposit depending on the value placed upon the valuable benefit by the court. ...read more.

The above preview is unformatted text

This student written piece of work is one of many that can be found in our AS and A Level Law of Contract section.

Found what you're looking for?

  • Start learning 29% faster today
  • 150,000+ documents available
  • Just £6.99 a month

Not the one? Search for your essay title...
  • Join over 1.2 million students every month
  • Accelerate your learning by 29%
  • Unlimited access from just £6.99 per month

See related essaysSee related essays

Related AS and A Level Law of Contract essays

  1. Marked by a teacher

    "The requirement of consideration is an unnecessary complication in the formation of contracts."

    4 star(s)

    Generally, it only acts as a temporary waiver as in the cases of Hickman v Haynes[1975], Hughes v Metropolitan Railway[1877] and Rickards v Oppenhaim[1950] but it remains uncertain whether the waiver is permanent or not. The case of Central London Property Trust Ltd v High Trees House Ltd (1947)

  2. Marked by a teacher

    Contract Law - Offer And Acceptance

    3 star(s)

    The objective test of agreement applies to an acceptance no less than to an offer * Mere acknowledgement of an offer would not be an acceptance; nor is there an acceptance where a person who has received an offer to sell goods merely replies that it is his "intention to

  1. Four ways in which a contract may be discharged.

    The contract made no reference to the coronation but it was due to take place and the procession was to pass the flat. The procession was cancelled because of the King's illness. The claimant sued for unpaid rent. Herne-Bay Steamboat Co v Hutton [1903] 2 KB 146.

  2. Contract Law

    Meaning of instantaneous Communication Face to face communication, telephone conversations and telex messages are all considered forms of instantaneous communication. Postal Acceptance Rule a) Statement of the rule An agreement will be formed when the offeree posts the letter, not when the offeror actually receives it (Henthorn v Fraser [1892]).

  1. I have been asked to advise a client on considering contracting with a building ...

    On 25th March the claimants signed the form. They sued the defendant for breach of contract. The defendant was not bound to take the car. His signing of the agreement was actually an offer to contract with the claimant. There was an implied condition in this offer that the car

  2. LAW OF CONTRACT. LAW 103. THE CONTENT OF THE CONTRACT.

    some express provision for it in the agreement, they would testily suppress him with a common 'Oh of course!'" (per Mackinnon LJ) The Moorcock (1889) 14 PD 64. The defendants contracted to allow the plaintiff to discharge his ship at their jetty.

  1. Law of Contract - Promissory Estoppel

    However, in advising Long, one must consider the possibility of Kajai invoking the defence of the promissory estoppel to estop Long from going back on his word (promise). This doctrine is an equitable doctrine which arose due to harshness of the common law rule in part payment where a party

  2. Contract Practice for Alpha construction LTD.

    SM SM 5.0 5.1 Date of next meeting Tuesday 24th February 13:30pm; Marylebone Campus, Library SM ________________ Meeting Agenda 1.2 Project: Hertfordshire School of Construction Ltd Meeting: Progress Meeting (Theme 1) Date: 24 February 2004 Time: 12:30pm Location: Marylebone Campus, Library Present : Taha Sheikh-Noor (TSN), Courtney Bramwell (CB), Shazad Mahmood (SM)

  • Over 160,000 pieces
    of student written work
  • Annotated by
    experienced teachers
  • Ideas and feedback to
    improve your own work