THE DOCTRINE OF FRUSTRATION: A LEGAL FRAMEWORK (By-Annanya Sukla Satpathy)
THE DOCTRINE OF FRUSTRATION: A
LEGAL FRAMEWORK
Authored By-Annanya Sukla Satpathy
Abstract
Unexpected supervening events might
obstruct the fulfilment of contract obligations, resulting in contractual
uncertainty. The doctrine of frustration allows for an equitable outcome in the
event of an undesirable incident that occurred without the contractual parties’
fault. Based on principles of fairness and equity, the doctrine fills the gap
in a contract about supervening events.
Given the importance of a legal
contract's obligatory and binding nature, it's crucial to look at the factors
that impact the court's decision. Unlike common law, Section 56 of the Indian
Contract Act clearly embraces the doctrine of frustration. However, English law
has had a significant influence on the development of this doctrine in India.
This paper aims to restate the legislation governing the doctrine of frustration
in India.
KEYWORDS: doctrine of frustration;
impossibility; supervening; Indian Contract Act; unlawful; fulfilment;
I.
Introduction
A contract is an agreement
between two or more parties that creates legally enforceable or identifiable
responsibilities. Unforeseen or supervening events, that is occurrences that
are unanticipated or cannot be predicted in advance by either party thus ultimately
discharging the parties from their contractual responsibilities, may impair the
performance of these obligations.[1]
The doctrine of frustration is a ‘doctrine’
that applies to the unique instance of a contract being discharged due to an
impossibility to perform it.[2]The
term frustration is not defined under the Indian Contract Act of 1872. The
frustration of purpose doctrine, as defined by Black law's dictionary in
relation to contracts, is “the doctrine that if a party's principal purpose
is substantially frustrated by unanticipated changed circumstances that party's
duties are discharged and the contract is considered terminated.”[3]
The term ‘frustration of contract’ is an elliptical expression Indian courts nuanced.
The fuller and accurate expression is 'frustration of the adventure or of the
commercial or practical purpose of contract'.[4]
This doctrine is a mechanism for reconciling the rule of absolute contracts
with a special exemption that is required in some instances in the interest of
justice.[5]
The doctrine is covered by Section 56
of the Contract Act which allows for the termination of a contract due to the
impossibility illegality of the act agreed to be performed.[6] A
contract is also frustrated under Section 32 if the contract's requirement is
not fulfilled or cannot be fulfilled due to impossibility (Paragraphs 1 & 2
of Section 32, respectively). Nonetheless, the idea is linked to Section 56 in
the Indian law. Section 32 only applies when contracts are discharged and
parties are released from their duties under the terms of the contract. When
contracts are discharged and parties are released from their obligation as a
result of external events and factors, Section 56 applies. Courts have used the
term ‘frustration’ and ‘impossibility to perform’ interchangeably while
explaining the law on the doctrine.[7] To
decide whether the intervening incident has rendered the performance “impossible”
under Section 56, it is necessary to lay out the many variables considered by
courts including the recently developed multifactorial approach.[8] A
variety of elements have been cited by Indian and English courts as having the
potential to frustrate a contract. The degree to which the supervening event
has influenced the performance is what determines whether thesupervening event
is frustrating.[9] This
paper aims to restate the current legal status of the doctrine of
frustration in India.
II.
Interpreting The Doctrine Under The
Contract Act
Section ‘56’ of the Indian Contract
Act, 1872 defines the doctrine of frustration. It states that “an agreement to
do an act impossible in itself is void”. The Doctrine of Frustration is founded
on the adage “lex non cogitadimpossibilia”, which states that the
law will not compel a man to do what he cannot possibly perform.
Contract to do an act that becomes
impossible or unlawful after the contract is made: A
contract to do an act that becomes impossible or unlawful after the contract is
made due to an event that the promisor could not prevent becomes void when the
act becomes impossible or unlawful.
Compensation for loss resulting from
non-performance of act known to be impossible or unlawful: When one person has
promised to do something that he knew or could have known to be impossible or
unlawful, but which the promisee did not know, the promisor must compensate the
promisee for any loss resulting from the non-performance of the promise.
Section ‘56’ of the Indian Contract
Act, 1872 clearly states that if a promisor knowingly commits to do a deed that
is impossible to perform and the promisee is unaware of the impossible act, the
promisor must compensate the promise.
Illustrations: If ‘A’ contracts with
‘B’ to uncover treasure via magic, the contract is nullified.
The Indian Contract Act of 1872,
Section 56, has two characteristics of impossibility:
Initial Impossibility: When an agreement’s fulfilment is
impossible or impracticable since it was made by parties, the agreement becomes
void from the start. Inability encompasses not only physical and material
impossibility, but also legal impossibility.
o
Example
– Against considerably contemplation, ‘X’ agrees with ‘Y’ to bring his deceased
father back to life. It is an impossible act and this form of contract is
initially impossible to fulfil.
Subsequently Impossibility: When a contract's performance was
valid and possible when the parties made it, but an event occurs later that
makes the act impossible or unlawful, the contract becomes void.
o
Example-
'K,' who lives in China, entered into an import deal with 'L,' who lives in
India. The Indian government prohibited the import of commodities from other
nations after the deal was signed. This contract was legitimate when it was
established, but it cannot be performed after this subsequent or impossible
event, and it becomes void.
A
contract to perform an act that becomes impossible or unlawful is void,
according to Section 56. The classic and landmark judgement of SatyabrataGhose
v MugneeramBangur and Co.[10]
provides a full interpretation of the provision. The defendant corporation in
this case offered to sell the plaintiff a block of property after developing it
by building roads and drains. However, a piece of the scheme's territory was
requisitioned for military uses. While applying the concept, the Supreme Court
determined that the requisitioning of the region had not seriously hampered the
performance of the contract as a whole, and so the contract had not been
impossible under Section 56.
III.
Grounds Of Impossibility Or
Frustration:
1. Death or Incapacity of
the party to perform the contract: If the contract's
performance is contingent on the existence of a specific person, that person
may be excused from performing the contract if that person becomes too unwell
to do so. As a result, if the terms or nature of a contract require the
promisor to perform personally, his death or incapacity terminates the
contract. In the case of Robinson v. Davison[11],
the parties agreed that plaintiff would participate in a concert, but she
became too ill at the time of the contract and was unable to do so. As a
result, the defendant suffered financial loss and filed a lawsuit against the
plaintiff. A contract will be frustrated under certain situations, according to
the court.
2. Destruction of subject
matter of the contract: The frustration or
impossibility doctrine applies "when the contract's actual and specified
subject-matter has ceased to exist." In the case of Howell v. Coupland[12],
the plaintiff and defendant entered into a contract in which the defendant
agreed to provide potatoes following cultivation. The defendant, however, was
unable to do so since the crops were decimated by disease. The court reasoned
that because the crops were completely developed at the time of the contract
and were destroyed by diseases, the unexpected event would have been excused
and the performance would have become impossible.
3. Non happening of a
particular events or Non- occurrence of contemplated events: A contract made by parties at the time it was made is a
legitimate contract that can be performed. However, the value of the
performance is lost due to the non-occurrence of an event anticipated by both
parties as the cause for the contract.
4. Change in Law and
Interference of the Government: When a new legislation
is established and a contract is made before the law is passed, fulfilment of
the agreement is impossible, and the contract is void. In Metropolitan Water
Board v. Dick Kerr and Co. Ltd.[13],
the appellant and defendant signed a contract in 1914 for the construction of a
reservoir, which took six years to complete. The work began at that time, but
the government stopped working after two years, in 1916. Because the delay
condition was a temporary obstacle, the court determined that the contract was
frustrated.
IV.
Factors That Do Not Amount To The
Frustration Of Contract
The doctrine's application is
constrained by contractual conditions as well as the principles of fairness and
justness. It is not applicable in circumstances where the factors do not amount
to frustration of contract as explained below.
1. Inherent or Foreseeable Risks:
Although not expressly stated, a
contract may contain certain inherent or foreseeable risks that must be
addressed when applying the theory. Its application cannot be attempted if the
parties have or should have recognised the risk of a supervening event
occurring because the parties have voluntarily accepted the risk.[14]Contracting
comes with its own set of dangers. In a case, a common carrier was required to
assure the protection of commodities against all external factors, with the
exception of acts of God or state enemies. Because the contract foresaw such a
danger, he was held accountable for the products being destroyed when a crowd
set fire to them after Smt. Indira Gandhi's assassination.[15]
Because this was not an act of God, the common carrier had a responsibility for
keeping the carrier safe.
To avoid the doctrine's application,
a high degree of foreseeability must be demonstrated.[16]
For example, a delay in a construction contract caused by a shortage of skilled
labour was found not to have frustrated the contract because the delay did not
result in a new state of affairs that the parties could not reasonably foresee.[17]
An intentionally taken risk will also
prevent the doctrine from being applied. When oil corporations submitted bids
with non-escalable tariffs, they were accepting the risk of an unanticipated
increase in coal prices.[18]
2.
Performance Becomes Burdensome Or Onerous:
During the performance, a party may
encounter unforeseen events, such as an unusual rise or fall in prices, a rapid
depreciation of the currency, any unanticipated hindrance to execution, and so
on.[19]
However, these factors do not eliminate the deal that was struck. The Supreme
Court has stated that courts do not have broad authority to release a party
from obligation simply because contract performance has become difficult due to
an unexpected turn of events.[20]
The contract ceases to bind only when a review of the terms of the contract in
light of the circumstances at the time it was made reveals that they never
agreed to be bound in a fundamentally different situation that had unexpectedly
arisen.[21]As
a result, a contract is not automatically cancelled just because it is
difficult or onerous to perform.[22]
The obstacle mentioned in Section 56 is not just a commercial one.[23]
Any economic situation, regardless of its
severity or impact, cannot be considered impossible. No implied condition of
"commercial" impossibility exists.[24]
The contract cannot be said to be frustrated if the performance is legally and
physically possible but commercially unprofitable.[25]
Treitel emphasised that a price
increase that makes the contract more expensive to execute does not constitute
"hindrance."[26]
For example, in a contract, the phrase "hinders the delivery" should
not simply refer to a price increase, but to a substantial impediment to the
contract's overall performance.[27]
3.
Self-Induced Frustration Or Cases
Where The Frustration Could Be Prevented:
Non-performance is excused if a party
can demonstrate that: (1) The
non-performance was caused by an impediment beyond its control,(2) it could not have reasonably
foreseen the impediment at the time the contract was made, and(3) it was unable to avoid or overcome
the impediment or its effects.[28]
A party cannot depend on its own
fault to exempt itself from contract liability.[29]The
party who claims that the frustration was self-induced bears the onus of
proof.[30] A
party does not have to prove that the event happened because of his fault.[31]
In one case, the charter-party performance was rendered impossible due to a
violent explosion in the chartered ship's boiler. The ship's owners did not
have to prove their innocence, but the party alleging self-induced frustration
did.[32]
In another instance, a contract
cannot be considered to be frustrated if the plaintiff did nothing to obtain
additional government approval to purchase the remaining 20 bighas of land
after receiving permission for 145 bighas, although knowing that the government
would not grant permission for the entire land at once.[33]
As a result, Section 56 does not apply[34]
in circumstances of self-induced impossibility that might have been avoided by
the party in question, and it will be considered a breach of contract, with the
party responsible for the breach obligated to compensate the other party.[35]
4.
Executed Contract:
When an obligation that has yet to be
fulfilled becomes difficult or impractical to fulfil, the notion of frustration
kicks in. The theory can only be applied to executory contracts, not executed
contracts or transactions that result in a demise in praesenti.[36] A
division bench of the Delhi High Court used the example of a retailer who
purchased products from a manufacturer and received agreed-upon amounts in
exchange for half payment. Now, if the market was saturated with cheaper
imported goods as a result of the change in import policy, the retailer could
not claim frustration and ask the Court to lower the price and free him of the
responsibility to pay the wholesaler the rest of the sale consideration.[37]
A completed conveyance differs from
an executory contract in that a completed transfer cannot be revoked by
subsequent occurrences.[38]
Because the lease deed is a completed conveyance, Section 56 can apply to a
lease agreement but not to the lease deed.[39]
The lease deed takes the place of the lease agreement as soon as it is
executed.
5.
The Foundation Is Not Substantially
Damaged:
As it has been established, the
doctrine of impossibility, which is based on fairness and common sense, cannot
be allowed to be used to undermine contract sanctity.[40]
In a recent decision, the Supreme Court ruled that if the leased property is
not substantially destroyed or rendered permanently unfit, the lessee cannot
terminate the lease on the grounds that he is unable to utilise it for the
purposes for which it was rented.[41]In
another judgment, the Supreme Court ruled that the contract is not broken when
there is still time to apply for approval.[42]
To maintain the defence of impossibility, the contract's foundation must be
substantially destroyed. This doctrine will not provide relief if a party fails
to show how two minor cyclones have damaged the contract's essentials.[43]
V.
Differentiating Section 32 &Section 56 Of The Contract
Act
Both Sections 32 and 56 of the
Contract Act apply to cases of contract frustration, and it is crucial to
understand the differences between the two. The party(ies) may consider Section
56 as a better option than Section 32. This incentive is the compensation that
a party that suffers a loss due to the failure to do an act that is known to be
impossible or unlawful may get under the third paragraph of Section 56.[44]
Technically, the contract can be
discharged under Sections 32 and 56 due to the impossibility of certain future
events. Section 32 deals with a contingent contract whose survival is dependent
on the fulfilment of a condition. If the criterion is not met, a contingent
contract will dissolve on its own, but Section 56 is invoked when a contract
becomes impossible to perform due to an external force.[45]
As a result, "it is occasionally a matter of doubt whether a contract
belongs under Section 32 or Section 56."[46]
The Supreme Court stated in Satyabratacase
that:
In cases, therefore, where the Court
gathers as a matter of construction that the contract itself contained
impliedly or expressly a term, according to which it would be discharged on the
occurrence of certain circumstances, the dissolution of the contract would take
place under the terms of the contract itself, and such cases would be outside
the purview of Section 56 entirely. Although these cases are handled as cases
of frustration in English law, they would be dealt with in India under Section
32 of the Contract Act, which deals with contingent contracts and other related
clauses.[47]
Section 32 will apply not only to contracts
that expressly include a condition on which performance is contingent, but also
to contracts that include an inferred condition.[48]
For example, if the sale of land is impliedly contingent on the permission of
other joint owners to the partition, the contract is a contingent transaction.[49]
This means that, even though the
condition is suggested by nature, its non-fulfillment should trigger Section 32
rather than Section 56. However, courts have occasionally handled similar
instances under Section 56 rather than Section 32. The Supreme Court, for
example, looked into a case where obtaining permission was impliedly required
to sell the land.It instructed the respondent to seek permission from the
competent authority, stating that "unless the competent authorities have
been moved and the application for consent/permission/sanction has been
rejected once and for all and such rejection has made finally irresolutely
binding and rendered impossible the performance of the contract resulting in
frustration as envisaged under Section 56, the relief cannot be refused for the
mere pointing out of some obstacles."[50]
VI.
Conclusion
The doctrine of frustration,
enshrined in Section 56 of the Indian Contract Act, gives the party(ies) a way
out if the performance is rendered impossible due to a supervening event that
is not their fault. The doctrine's application calls into question the
contract's sanctity in specific new conditions. English courts developed
several theories to justify the doctrine's use in specific circumstances,
however Indian law has codified the doctrine in Section 56, eliminating the
need to develop and apply theories to justify the doctrine's application.
The factors and circumstances that
courts consider when evaluating whether Section 56 is applicable or not have
been discussed in depth in this Paper. Situations in which the contract's
subject matter has been destroyed, performance has become illegal, the reason
for entering into the contract has been lost, performance has been excessively
delayed, or the performer has died or is incapable of performing are all
examples of factors that would trigger Section 56's provisions. When the risk
is inherent in the contract; frustration is self-inflicted; the contract is an
executed contract; the contract can still be performed; or the deal's
foundation is not substantially broken; these are examples of conditions that
would not draw the provisions of Section 56. While there have been multiple
instances of Indian courts incorrectly applying Section 56 to cases of
contingent contracts, if the reasons and conditions that lead to contract
frustration are addressed in a contract, the contract should be governed by Section
32 rather than Section 56. However, if the contract's provisions do not account
for the degree of the intervening elements and situations that truly interfere
with the performance of the relevant contract, the contract may be discharged
under Section 56 despite the express clause. By including well-drafted and
explicitly specified terms in the contract, such as a force majeure clause, the
contracting parties can escape the realm of uncertainty created by any future
event. Such clauses may divide the risk of a subsequent incident amongst the
parties. However, the scope of such a provision will determine whether or not
it covers the supervening event; otherwise, Section 56 may be required.
Commercial and market practises are mostly used to interpret the phrase in
order to define its scope. The doctrine's and clauses like force majeure
clauses' restrictive application favours the enforceability of rights and
responsibilities under a contract, which is crucial to protect the parties'
trust. While the doctrine of frustration has its origins in common law, its
codification in Section 56 and advancement under Indian law are notable and
consistent.