CHAPTER 2

DEVELOPMENT

I. THE D OCTRINE OF PARADINE V JANE

(1) Introduction

Paradine v Jane1 is generally regarded as the authority for what has become 2–001
known as the doctrine of absolute contracts. The case was frequently cited in later
decisions in which the court held that supervening events had not discharged a
party from the contractual obligation in suit; and it continued so to be cited even
after Taylor v Caldwell,2 which is now generally considered to have established
the doctrine of discharge by supervening events, a doctrine which has come in
English law to be known as the doctrine of frustration.3 Account must also be
taken of the fact that many of the actual decisions in which Paradine v Jane was
applied are still regarded as good law.4 In discussing that case, a number of ques-
tions therefore present themselves: what actually was decided? what subsequent
applications were made of the decision? and how much of what was decided (in
the case itself and in later applications of it) still survives? The ensuing discussion
is confined to the first two of these questions; the third will be considered after we
have discussed the impact of Taylor v Caldwell.

(2) The decision itself

The facts in Paradine v Jane were that the tenant of a farm was sued for rent and 2–002
pleaded that for part of the period to which the claim related he had been dispos-
sessed by “Prince Rupert, an alien born, enemy to the King5 and kingdom . . . with

1
(1647) Aleyn 26; Kiralfy, A Source Book of English Law, p.22; Ibbetson, “Absolute
Liability in Contract”, in (ed. Rose), Consensus ad Idem, Essays in the Law of Contract
in Honour of Guenter Treitel, 1.
2
(1863) 3 B. & S. 826.
3
For the various meanings of “frustration”, see below, paras 2–045 to 2–051.
4
See below, paras 2–033 to 2–034, 11–003, 11–017 to 11–022.
5
Ibbetson, op. cit., p.31 criticises this description of Prince Rupert on the ground that he
was “the King’s nephew and effective commander of his army”. The first of these points
is hardly compelling (King George V and Kaiser Wilhelm II were cousins) and the force
of the second may well have been diminished by events in the Civil War, such as the fact

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an hostile army of men,” so that the defendant was prevented from taking the
profits of the land. The lessor demurred to this plea, so that the facts alleged in it
must be assumed to have been true; and it was held that the tenant was neverthe-
less liable in debt for rent under the lease in respect of the period during which he
was so dispossessed. One narrow ground for the decision was that the tenant had
not pleaded that the entire force which had dispossessed him were alien enemies,
the point being that, to the extent that this was not the case, the tenant would have
had a remedy over against the wrongful dispossessors. But the court went on to
give a wider ground, under which the tenant was liable “though the whole army
had been alien enemies”.6 In reaching this result, the court drew a distinction
between two situations and laid down two propositions. It will be convenient in
the ensuing discussion to refer to these as the first and second propositions in
Paradine v Jane and to note at this point that it is the second proposition which
has been the more influential, so much so that the first is commonly overlooked
or disregarded and that references to the doctrine of Paradine v Jane, or to the
doctrine of absolute contracts, are to the second proposition only. The two
situations between which the judgment distinguishes, and the propositions of
law applicable to them, are as follows: (1) “Where the law creates a duty or charge
and the party is disabled to perform it without any default in him, and hath no
remedy over, there the law will excuse him. As in the case of waste, if a house be
destroyed by tempest or by enemies, the lessee is excused . . .” (2) “But when the
party by his own contract creates a duty or charge upon himself, he is bound to
make it good, if he may, notwithstanding any accident by inevitable necessity,
because he might have provided against it by his contract. And therefore if a
lessee covenant to repair a house, though it be burnt by lightning or thrown down
by enemies, yet he ought to repair it”.7 This distinction calls for a number of
comments.

(3) Distinction between the two propositions

2–003 First, the distinction between cases “where the party by his own contract creates a
duty” and those “where the law creates a duty” is not the same as the modern distinc-
tion between contractual and non-contractual duties: no doubt the latter phrase
applies where the duty is now regarded as arising in tort,8 but it is not restricted to
such cases. Thus a tenant’s duty not to commit waste is given in Paradine v Jane as
an example of a duty created by law, even though it arises out of contract just as
much as his duty to pay rent or his duty to perform an express covenant to repair.
Some of the duties arising out of the relationship of bailor and bailee are likewise
regarded for the present purpose as having been created by law, even where the

that Prince Rupert was dismissed from his command in 1645 after the surrender of
Bristol and that at the time of the decision of Paradine v Jane the King was, in effect,
prisoner of the Parliamentarians: see 48 ODNB 147, et seq.; C V Wedgwood, The King’s
War, 461 at 571 and passim.
6
(1647) Aleyn 26 at 27.
7
ibid.
8
e.g. Carstairs v Taylor (1871) L.R. 6 Ex. 217 at 223, applying the first proposition in
Paradine v Jane to a tort case.

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 T HE D OCTRINE OF P ARADINE V J ANE 2–004

relationship is contractual,9 and we shall see that the performance of such duties
may be excused by supervening events.10 The distinction drawn in Paradine v Jane
more closely resembles the modern distinction between express terms and certain
implied terms. The implied terms in question are those which the law implies or
imposes (in the absence of contrary agreement) to give expression to a number of
duties which prima facie arise out of certain types of contracts, or (in other words)
to terms which form “legal incidents of those . . . kinds of contractual relationship.”11
In modern terminology, such terms have come to be known as “terms implied in
law”.12 A tenant’s obligation not to commit waste can be said to fall into this cate-
gory.13 The point of the distinction between the two situations described in Paradine
v Jane is that “accident by inevitable necessity” is no defence to an action on an
express contractual promise; but the judgement seems to recognise that such circum-
stances can be a defence to an action for breach of an implied promise or of a “legal
incident” of a contract. This is made plain by the contrast between the two examples
given: a tenant is not liable for waste “if a house be destroyed by tempest” but is
liable for breach of an express covenant to repair a house “though it be burnt by
lightning”.14

(4) Events affecting the counter-performance for the performance in suit

The second point arises out of the citation in subsequent cases of the dictum from 2–004
Paradine v Jane (quoted above15) as to the tenant’s liability on his express cove-
nant to repair. Such citations were so frequent as apparently to give rise to the
impression that Paradine v Jane was an action against the tenant for breach of a
covenant to repair,16 when actually it was an action for rent. It was, in other words,
a case in which the supervening event affected, not the performance which was
being sued for, but the counterperformance for that performance: that is, the enjoy-
ment by the tenant of the subject-matter of the lease. In a later case it was indeed
suggested that Paradine v Jane was a case where “The Court . . . saw a cross
remedy for the tenant . . .”.17 This might suggest that the court regarded the lessor
as being liable for his inability to render a performance made impossible by the
supervening event. But the only actual reference in Paradine v Jane to a “remedy
over” is in the cases “where the law creates a duty”, e.g. in cases of waste: the point
appears to be that, if the tenant has a remedy against a third party who is respon-
sible for the damage then the tenant is responsible to the landlord even though the
damage occurred “without any default in him” (i.e. the tenant). There is no

9
cf. Sandeman Coprimar SA v Transitos y Transportes Integrales SL [2003] EWCA Civ
113; [2003] Q.B. 1270 at [63] (“bailment and contract often go hand in hand”).
10
Below, para.2–012.
11
Mears v Safecar Securities Ltd. [1983] Q.B. 54 at 78.
12
See Treitel (13th ed.), para.6–041; Société Générale, London Branch v Geys [2012]
UKSC 63; [2013] 1 A.C. 523 at [55].
13
Treitel (13th ed.), para.6–044, p.11.
14
Above, at n.7.
15
ibid.
16
Paradine v Jane is, for example, cited as an authority covering this situation in Chitty on
Contracts (2nd ed., 1834), p.569 and in Hall v Wright (1859) E.B. & E. 765 at 775.
17
Brown v Quilter (1764) Amb. 619 at 621; as to this case, see further para.2–007, below.

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suggestion that, on the assumed facts of the case, the tenant had any “cross remedy”
against the landlord.18 A conceivable ground for such a remedy might have been on
the landlord’s covenant for quiet possession; but such a remedy is most unlikely to
have been available. There is no reference in the report to any such express cove-
nant, and a claim on an implied covenant, even if then available,19 would have
fallen into the first of the two groups of cases distinguished in Paradine v Jane. i.e.
within the group “where the law creates a duty” so that the landlord would have
been excused by supervening disability occurring “without any default in him”.
Another way of reaching the same conclusion would be to say that the implied
covenant amounts only to an undertaking that the tenant’s possession will not be
interrupted by the landlord or by the lawful acts of those claiming through him20:
this is certainly the modern view, under which, on facts resembling Paradine v
Jane, the landlord would not be in breach.21 This would also normally be true even
if there were an express covenant, which prima facie extends to interruptions of the
kind just described and also to those arising from claims by title paramount.22 In
the modern law, this “means an eviction due to the fact that the lessor had no title
to grant the term”23; but in Paradine v Jane the tenant’s eviction was not due to any
defect in the landlord’s title: it was the result of an act of naked force on the part of
a stranger. An express covenant might, no doubt, have been drafted so as to make
the landlord liable even for a dispossession of this kind, but there is no hint in the
report that the lease contained any such unusual covenant. It is most unlikely,
therefore, that any “cross remedy” against the landlord would have been available
to the tenant. The probable reason for this conclusion is not that the landlord was
“excused” by reason of the supervening events; it is rather that his contractual
responsibility did not, in the first place, extend to the state of affairs which those
events brought about. In any case, nothing was decided in Paradine v Jane (even
by inference) as to the liability of the landlord. The only point actually decided was
that the tenant remained liable for rent even on the assumption that he was deprived
of possession of the premises by an event for which neither party was responsible.
On this point, the decision was followed in many later cases in which it was simi-
larly held that liability for rent was not discharged by the supervening destruction
of the premises by fire, flood24 or enemy action.25

18
The judgment at most envisages a remedy against a third party: e.g. against disposses-
sors if they were not alien enemies: see above before n.6; cf. Monk v Cooper (1727) 2
Str. 763, discussing the possibility of a tenant’s remedy against a third party who might
have been responsible for destruction of the house by fire. There is no reference to this
point in the report of Monk v Cooper in 2 Ld. Raym. 1477.
19
See Megarry and Wade, Law of Real Property (8th ed.), para.19–003; Hill and Redman,
Law of Landlord and Tenant, 18th ed. (2013 issue) para. A [1770] – [1780].
20
Hill and Redman, above, para. A [2947].
21
Some of the older authorities may have gone further in, e.g. giving a remedy to the
tenant in respect of distress by a superior landlord: see Hill and Redman, above, para. A
[2950] – A [2960], n.3; but not in respect of tortious interference by a third party since
the tenant then had his remedy against the wrongdoer: Hayes v Bickerstaff (1675)
Vaugh. 118.
22
Hill and Redman, above, A [2950] – A [2960].
23
Matthey v Curling [1922] A.C. 180 at 227.
24
For such cases, see below, para.2–007.
25
London and Northern Estates Ltd v Schlesinger [1916] 1 K.B. 20; below, para.11–021.

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 T HE D OCTRINE OF P ARADINE V J ANE 2–006

(5) Events affecting the performance in suit

A third point relates to the scope of the doctrine of Paradine v Jane. The language 2–005
of the second proposition in that case is certainly wide enough to extend to the
case where performance of the defendant’s own promise (and not merely that of
the counter-promise for it) is prevented as a result of some “accident by inevitable
necessity”. This view is at first sight supported by the dictum in Paradine v Jane,
making the tenant of a house liable on his express covenant to repair it, “though it
be burnt by lightning or thrown down by enemies”26; and by many subsequent
cases in which that dictum was applied so as to hold the tenant liable on his
repairing convenant in such circumstances.27 No doubt a landlord would be simi-
larly liable for breach of his express covenant to repair. Here, however, one must
beware of an ambiguity in the word “repair”. No doubt if the owner of a car (or
indeed of a house) employed a contractor to “repair” it, in the sense of putting
right some defect in it, the destruction of the car (or house) would in the modern
law prima facie discharge the contract; for its subject-matter, or a thing essential
for its performance, would have disappeared.28 But in the law of landlord and
tenant, a tenant’s covenant to “repair” the premises, or to repair and keep them in
repair, or to deliver them up at the end of the tenancy in good and tenantable
repair, may, on its true construction, require the tenant to reinstate the building29
even if it or part of it has been destroyed as a result of a supervening calamity such
as fire or flood,30 or as a result of the order of a public authority.31 If so, the
covenant simply means that the tenant must, in the event of the destruction of
the building, restore it to its former state. Thus a covenant by a tenant to “repair”
the house which is the subject-matter of the tenancy, and a contract by a builder to
make specified “repairs” to the same house, may impose obligations of very
different content: destruction of the house may make it impossible to perform the
latter, but not the former, obligation. The cases holding a tenant liable on a cove-
nant to repair after destruction of the premises32 do not make him liable for failing
to do what is impossible. In Paradine v Jane performance of the covenant to
repair might, indeed, have been impossible during the period of the tenant’s
dispossession, so that he would have had an excuse for delay in executing the
repairs; but the question of the tenant’s liability for such delay was not in issue,
nor even discussed in the dictum relating to repairs.
Similar problems can arise in the law of insurance. In Brown v Royal Insurance 2–006
Co33 buildings were insured against fire risks for £1,500 under a policy giving the
insurers the right to reinstate them instead of paying claims. The buildings having
been destroyed by fire, the insurers elected to reinstate, and after they had begun
to do so a public authority, acting under statutory powers, caused the building to

26
(1647) Aleyn 26 at 27.
27
Below, para.2–007.
28
cf. Appleby v Myers (1867) L.R. 2 C.P. 651, below, para.4–017.
29
It will not necessarily have this effect: see Lurcott v Whakely & Wheeler [1911] 1 K.B.
905 at 919.
30
e.g. Bullock v Dommitt (1796) 6 T.R. 650; Redmond v Dainton [1920] 2 K.B. 256.
31
e.g. Lurcott v Wakely & Wheeler [1911] 1 K.B. 905.
32
Below, nn.38–46.
33
(1859) 1 E. & E. 853; and see below, para.2–031.

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 2–006 C HAPTER 2—D EVELOPMENT

be taken down as a dangerous structure. This was held to be no defence to a claim

by the insured for damages. One view of the case was that “the fact that perform-
ance has become impossible is no excuse for their [the insurers’] not performing
it (i.e., the contract)”34: this is reminiscent of the second proposition in Paradine
v Jane. Another view is that performance had not become impossible but only
“more expensive . . ., but that is no answer”35: this view is in turn comparable with
the repairing covenant dictum in Paradine v Jane: if such a covenant, on its true
construction, imposes an obligation to reinstate, it may involve the covenantor in
unexpected expense, but there is no impossibility of performance.

(6) Applications of the doctrine in later cases between landlord and tenant

2–007 The doctrine of Paradine v Jane, or the reasoning of the case so far as it relates to
express covenants, was followed in many later cases between landlord and tenant.
These cases fall into two overlapping groups.
In the first group, it was held that a tenant remained liable for rent in spite of the
destruction by fire or flood or tempest of buildings on the land.36 At common law,
this was so even though the landlord had insured the premises and had been paid
the sum insured in consequence of the destruction of the premises.37 In the second
group of cases, it was held that the tenant could be liable on his covenant to repair
in case of destruction of the premises by some such calamity38; where the tenant
covenanted to insure and repair, his liability to repair was held not to be limited by
the amount of the insurance.39 The tenant’s liability on his covenant to repair was
based simply on the construction of that covenant, which in the cases in question
was regarded as imposing a duty on the tenant to keep the premises in repair irre-
spective of the cause of their disrepair. Indeed, such a construction was not
confined to covenants in leases: in one case40 it was applied to a contract to build
a bridge and to keep it in repair for seven years, so that the contractor was liable
when during those seven years the bridge was washed away “by a great unusual
and extraordinary flood”.41 In a passage remiscent of Paradine v Jane, Lord
Kenyon C.J. said that “if the defendants had chosen to except any loss of this kind,
it should have been introduced into this contract by way of exception”.42 In the
reported cases concerning leases, such exceptions were by no means uncommon:
thus in a number of these cases the tenant’s convenant to repair is qualified in that
loss or damage by fire is expressly excepted. It is at this point that the two lines of

34
(1859) 1 E. & E. 853 at 859.
35
ibid. at 860.
36
Carter v Cumming (1666) 1 Cas. in Ch. 84; Walton v Waterhouse (1673) 2 Wms. Saund.
422 n.2; Monk v Cooper (1727) 2 Ld. Raym. 1477; 2 Str. 763; Bullock v Dommitt (1796)
6 T.R. 650; River Wear Commissioners v Adamson (1877) 2 App. Cas. 743 at 748.
37
Belfour v Weston (1786) 1 T.R. 310 at 312; Lofft v Dennis (1859) 1 E. & E. 474.
38
Bullock v Dommitt, n.36, above; Walton v Waterhouse, n.36, above; cf. Chesterfield v
Bolton (1739) 2 Com. 627.
39
Digby v Anderson (1815) 4 Campb. 275.
40
Company of Proprietors of the Brecknock & Abergavenny Canal Navigation v Pritchard
(1796) 6 T.R. 750.
41
ibid. at 750.
42
ibid. at 752.

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cases overlap, for although in such cases a tenant was not liable on the repairing
covenant in the event of destruction of the premises by fire, he nevertheless
remained liable for rent43; while the mere fact that fire was excepted from the
tenant’s covenant to repair was held not to impose any duty to repair on the land-
lord.44 Even where each party covenanted to repair (e.g. where the landlord and
the tenant covenanted respectively to keep the exterior and interior in repair) acci-
dental destruction of the premises did not liberate the tenant from his liability for
rent,45 his covenant to pay rent and the landlord’s covenant to repair being
evidently regarded as “independent,”46 so that the tenant’s remedy would be a
cross-claim for damages.
The common law position as stated above was at one time doubted in equity. It
was said that, where the tenant’s covenant excepted liability for fire and the land-
lord had received the proceeds of his insurance against fire, he could be restrained
from suing for rent until he had reinstated the premises.47 Lord Nottingham
evidently regarded the landlord’s failure to reinstate as akin to eviction48 and so
providing the tenant with a remedy under the landlord’s express covenant for
quiet enjoyment. But this analogy was later criticised on the ground that such a
remedy was available only in respect of defects of title and the view that the tenant
could rely on equity to escape from the rule in Paradine v Jane did not prevail.49

(7) Performance of promise in suit becoming impossible

The foregoing discussion shows that neither the decision in Paradine v Jane 2–008
itself,50 nor the later cases between landlord and tenant in which the reasoning of
that decision was applied, actually support the proposition that a party is liable in
spite of the fact that his own performance has become impossible. Further situa-
tions can, indeed, be imagined in which performance of the obligations in suit
might be affected by impossibility. This would, for example, have been the case if
in Paradine v Jane the tenant had promised to pay a “rent” consisting of a speci-
fied quantity out of crops to be grown by him on the demised land, or of a speci-
fied proportion of such crops: performance of the tenant’s promise would have
been literally impossible during the period of his dispossession. Similarly, a
natural catastrophe might not only have destroyed buildings on the land but have
made their re-erection impossible, at least in the then existing state of technology:
for example, if the land had been seriously and permanently flooded to such an

43
Monk v Cooper (1727) 2 Ld. Raym. 1477; 2 Str. 763; Belfour v Weston (1786) 1 T.R.
310.
44
Holtzapffel v Baker (1811) 18 Ves. Jr. 115; the same assumption seems to have been
made in Waters v Weigall (1794) 2 Anst. 575.
45
Leeds v Cheetham (1827) 1 Sim. 146.
46
Marshall v Schofield (1882) 52 L.J.Q.B. 58 at 60. For the concept of “independent”
promises, see Treitel (13th ed.), para.17–09.
47
Brown v Quilter (1764) Amb. 619 at 621; cf. Steele v Apsley (1773) cited in Doe v
Sandham (1787) 1 T.R. 705 at 708.
48
Brown v Quilter, above, at 621.
49
Hare v Groves (1763) 3 Anst. 687; cf. Waters v Weigall (1794) 2 Anst. 575; but Lord
“Northington’s” (Nottingham’s?) view in Brown v Quilter, n.47, above, is cited with
apparent approval by Lord Kenyon C.J. in Cutter v Powell (1795) 6 T.R. 320 at 323.
50
(1647) Aleyn 26.

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extent that it could not be drained. If taken literally, the second of the two proposi-
tions in Paradine v Jane (quoted above)51 would extend to such situations; but no
actual decision goes to the length of holding a tenant liable on such facts.
To find cases in which a party was held liable, under the doctrine of Paradine
v Jane, for failing to render a performance which became impossible one has to
turn to cases involving the carriage of goods by sea. A sketchily reported case
decided before Paradine v Jane is Tompson v Miles,52 where the defendant
contracted to deliver goods in London (evidently under a contract of carriage53).
The goods were later put on a boat which was overturned “by the violence of wind
and water” and this fact was said not to provide any excuse for the defendant.54
Other obstacles to the performance of charterparties were likewise held to have no
effect on the contract in a number of cases decided between Paradine v Jane and
the development of the modern doctrine of discharge. One such case was Shubrick
v Salmond55 which arose out of a voyage charter to carry rice from Winyaw (in
South Carolina). The charterparty contained an express covenant on the part of
the shipowner “to go thither”, but the ship was prevented by bad weather from
leaving Madeira and so failed to reach Winyaw within the period specified. The
shipowner was held liable, Lord Mansfield saying that, “The words are positive
and express that he should go thither”.56 This language, as well as Lord Mansfield’s
reference to cases in which tenants were held liable for rent although the premises
had been destroyed by fire, seem to indicate that he had Paradine v Jane in mind,
a view evidently taken by the reporter.57 It is reinforced by Wilmot J.’s observa-
tion that if the shipowner “had not expressly convenanted to go to this port; and
had been unavoidably prevented, without any default in himself; it might have
been a different case.”58
2–009 In a later case59 it was held that a shipowner was not excused where an
“embargo” (i.e. detention of the ship) prevented him for two years from carrying
the goods to the agreed destination; and Lawrence J. expressly relied on Paradine
v Jane in support of this conclusion. The fact that the defendant’s arguments in
these cases differed from that of the defendant in Paradine v Jane, in that the
supervening event affected the shipowners’ own performance, while in Paradine
v Jane it affected the counter-performance expected by the tenant, is not mentioned
by the court. Nor is it mentioned in other charterparty cases in which it was held
that a defendant was not absolved where supervening events prevented him from

51
Above, para.2–002.
52
(1591) I Rolle’s Abridgement Conditions G. 9.
53
This is clear from the report in Camb. U.C. MS Ee 6.12 f.91; I am grateful to Professor
D.J. Ibbetson for supplying me with this text.
54
The action was against the carrier for damages. In Chitty on Contracts (2nd ed., 1834),
the case is cited with a wrong reference to 7 T.R. 384. This refers to a passage in Cook v
Jennings (1797) 7 T.R. 381 which is not concerned with the carrier’s liability. It decides
the different point that a carrier whose ship is wrecked “by violence of wind and waves”
is not entitled to freight. The reason for this is that he has not performed a condition
precedent to the cargo-owner’s liability to pay—not that the contract is discharged.
55
(1765) 3 Burr. 1637.
56
ibid. at 1640.
57
Who cites Paradine v Jane in his footnote to the report.
58
(1765) 3 Burr. 1637 at 1640.
59
Hadley v Clark (1799) 8 T.R. 259.

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performing his express undertaking. Thus it was held in Barker v Hodgson60 that
a shipper was liable for failing to load a cargo even though the failure was due to
a pestilence making the performance of his undertaking to load “impracticable”61;
it is interesting to note that this case was cited with approval by Blackburn J.62
five years after his famous judgment in Taylor v Caldwell.63 The word “impracti-
cable” might suggest that there was no actual impossibility,64 but other charter-
party cases do apply the same principle where there was such impossibility. For
example, where shipment was prevented by an embargo at the foreign port of
shipment, it was said that “If a man undertakes what he cannot perform, he shall
answer for it . . .”65 A fortiori, it was held in Hills v Sughrue66 that a charterer was
not excused from performance of his undertaking to provide “a full cargo of
guano” merely by reason of the fact that, on the ship’s arrival at the port of loading,
there was no guano there. The undertaking to provide the cargo was described as
“absolute” or “positive”.67 The court also seems to have attached some impor-
tance to the high freight rate, saying that “it looks very much like a contract for
supplying goods at that price”68: i.e., the charterer’s strict liability69 for supplying
a cargo was likened to the strict liability of a seller who has undertaken to deliver
unascertained generic goods. Conversely, shipowners were held liable where
loading was prevented by an embargo placed (or likely to be placed) on their
vessels70: in one such case,71 Paradine v Jane was cited in the judgments to
support this conclusion. Again, a shipowner was held liable for refusing to set sail
for a port which was under blockade,72 but the reasoning seems to be that the
blockade might have been lifted by the time of the ship’s arrival there and that the
contract might have amounted to a speculation on the length of the blockade. In
his direction to the jury, Tindal C.J. said that, if the blockade had still continued
when the ship arrived at the named port, the charterer would have been entitled to
no more than nominal damages: this seems to indicate that failure to enter the
blockaded port would have been a breach, but one that would have caused no loss.
But the view that failure to proceed to a blockaded port would amount to a breach
was qualified in Pole v Cetcovich73 where the owner of an Austrian ship was held
not liable for failing to proceed to Copenhagen which was being blockaded by
French warships in the course of a war between Austria and France. One factor

60
(1814) 3 M. & S. 267.
61
ibid. at 269.
62
In Ford v Cotesworth (1869) L.R. 4 Q.B. 127. See further below, para.2–025, at n.193
and para.2–032, at nn.241 to 243.
63
(1863) 3 B. & S. 826 below, paras 2–024, 2–025.
64
cf. below Ch.6.
65
Bligh v Page (1801) 3 B. & P. 295n., followed in Sjoerds v Luscombe (1812) 16 East
201; cf. Spence v Chodwick (1847) 10 Q.B. 517.
66
(1846) 15 M. & W. 253, probably a case of antecedent impossibility: see below,
para.2–032, at n.245.
67
(1846) 15 M. & W. 253 at 261.
68
ibid.
69
cf. above, para.1–003.
70
Hadley v Clark (1799) 8 T.R. 259; Atkinson v Ritchie (1809) 10 East 530.
71
Atkinson v Ritchie, above, at 533.
72
De Medeiros v Hill (1831) 5 C. & P. 182.
73
(1860) 9 C.B.N.S. 430.

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influencing the decision appears to have been that the captain was not bound to
expose his ship to danger: thus the court asked rhetorically whether, if a violent
storm had arisen, the captain would not have been “justified in delaying his depar-
ture till the storm abated?”74 But the actual decision was based on the ground that
the contract did not specify any particular time for proceeding to Copenhagen, so
that the shipowner’s contractual duty was merely to go there without unreason-
able delay, and (in view of the blockade) his delay had not been unreasonable.
Accordingly, the decision was said not to “qualify the rule that a party contracting
to do a thing must do it at all events or pay the penalty of his inability to perform
the contract which he has entered into”.75 Pole v Cetcovich is concerned with the
definition of the shipowner’s obligation, particularly with regard to the time of
performance, rather than with the question whether that obligation was discharged
by supervening events.

II. EARLY Q UALIFICATIONS OF THE

D OCTRINE OF A BSOLUTE CONTRACTS
2–010 The doctrine of absolute contracts, as stated in Paradine v Jane, was never of
universal application, but was subject to a number of significant qualifications.
Some of these can be regarded as applicable to cases outside the scope of the
doctrine; others as exceptions to it. So far as the scope of the doctrine is concerned,
it is important to recall76 that Paradine v Jane states two propositions, the first of
which applies “where the law creates a duty” and the second “when the party by
his own contract creates a duty or charge upon himself”; and that the second
proposition (which states the doctrine of absolute contracts) is that the party in
question “is bound to make it good, if he may, not withstanding any accident by
inevitable necessity.”

(1) “If he may”: supervening illegality

2–011 In determining the scope of the doctrine, the first question is: what, in the second
of the propositions quoted in para.2–010 above is meant by the words “if he
may?” Do they mean “if he can” (in the sense of being able to do something), or
“if he is allowed” (in the sense of being legally permitted to do something)? From
the context, it seems that they cannot have the former meaning, for to give them
this meaning would make the second proposition largely self-contradictory.77 One
of the points which that proposition seems to be making is precisely that a party
may be liable in spite of the fact that what he promised has become impossible.
That is certainly the view taken in some of the later cases (such as the charterparty
cases discussed in para.2–009 above) even though it was not decided in Paradine
v Jane itself.78 On the other hand, to interpret the words in the latter sense merely

74
ibid. at 437. For a modern statement of the same principle, see Kuwait Petroleum Corp
v I & D Oil Carriers Ltd (The Houda) [1994] 2 Lloyd’s Rep. 541 at 547–549.
75
(1860) 9 C.B.N.S. at 439; cf. The Houda, above, at 555.
76
Above, para.2–002.
77
Joseph Constantine S.S. Line v Imperial Smelting Co Ltd [1942] A.C. 158 at 184.
78
Above, para.2–004.

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imposes a limited restriction on the scope of the doctrine of absolute contracts,

namely that a party may be discharged even from his duty to perform an express
contractual promise by a supervening legal prohibition or legal compulsion. The
point was put (perhaps rather quaintly) in another seventeenth century case: if an
Act of Parliament compels a person to do what he has convenanted not to do, “the
statute repeals the covenant”.79 While this statement deals with legal compulsion,
the same restriction on the scope of the doctrine of absolute contracts is more
commonly illustrated by legal prohibition. The point is made in some of the char-
terparty cases already discussed,80 in which supervening impossibility was held
not to be a ground of excuse; but in a number of these cases the courts emphasise
that performance had not become unlawful, thus indicating that such supervening
illegality would have led to a different result.81 In accordance with these dicta, it
was held that a charterparty was dissolved when, following the outbreak of the
Crimean War, the port of destination became an enemy port82; and the view that
such supervening illegality (even by foreign law83) had this effect was reaffirmed
(after Taylor v Caldwell84) in a judgment expressly based on the assumption that
Paradine v Jane was “at present” still good law.85 This restriction on the scope of
the doctrine of absolute contracts appears to be based on the principle of public
policy that parties must not be given inducements to violate the law.86 In Atkinson
v Ritchie this principle is given an even wider scope: it is said to apply where
performance, though not illegal, would be contrary to public policy. The actual
decision was that the owner of a chartered ship was not justified in sailing her
away from St Petersburg by rumours of an impending Russian “embargo” (not
actually imposed till six weeks later) on British vessels. But Lord Ellenborough
C.J. said that the contract would have been discharged, not only if it had “become
illegal”, but also if “by reason of a change in the political relations and circum-
stances of this country” the contract had “become incapable of being any longer
carried into effect without derogating from the clear public duty which a British
subject owes to his Sovereign and the State of which he is a member”.87 He added
that “this new public duty” could arise only if the change of circumstances had
actually taken place, and if “the danger . . . to the public interest [was] clear imme-
diate and certain”88; and neither of these requirements had been satisfied when the
ship had sailed away. Later cases, while upholding the principle of discharge by

79
Brewster v Kitchell (1679) 1 Salk. 198.
80
Above, para.2–009.
81
Atkinson v Ritchie (1809) 10 East 530 at 534; Barber v Hodgson (1814) 3 M. & S. 267
at 270; Spence v Chodwick (1847) 10 Q.B. 517 at 529; cf. Cunningham v Dunn (1878)
3 C.P.D. 441 at 449; and see Jacobs v Crédit Lyonnais (1884) 12 Q.B.D. 589, as
explained in Ralli Bros. v Compania Naviera Sota y Aznar [1920] 2 K.B. 287 at 292 on
the ground that there was no illegality by foreign law.
82
Esposito v Bowden (1857) 7 E. & B. 763.
83
Below, para.8–056.
84
(1863) 3 B. & S. 826; below, para. 2–024.
85
The Teutonia (1871) L.R. 3 A. & E. 395 at 411.
86
cf. below, Ch.8.
87
(1809) 10 East 530 at 534–535; cf. also Touteng v Hubbard (1802) 3 B. & P. 291,
discussed below at para.5–037.
88
(1809) 10 East. 530 at 535.

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illegality,89 have not followed up the suggestion of discharge by supervening

events which made performance contrary to public policy but fall short of making
it illegal.

(2) Bailment: duty of bailee

2–012 The second qualification of the doctrine of absolute contracts concerns cases of
bailment. In Taylor v Caldwell, Blackburn J., after referring to “the great case of
Coggs v Bernard”90 stated this qualification as follows: “if the performance of the
promise of the . . . bailee to return the things91 lent or bailed becomes impossible
because it has perished, this impossibility (if not arising from the fault of the . . .
bailee from some risk which he has taken upon himself92) excuses the . . . bailee
from the performance of his promise to redeliver the chattel.” So, for example, the
bailee of a horse was held not to be liable for failure to return it when the horse
had died without any default on the bailee’s part before the bailor had requested
its return.93 Such cases again seem to fall outside the scope of the doctrine of
absolute contracts rather than to constitute to an exception to it. Coggs v Bernard
specifies in detail the standard of duty owed by various types of bailee: this may,
for example, depend on whether the bailee is a gratuitous bailee or a bailee for
reward. Two points are relevant in the present context in relation to these rules.
First, such cases of bailment can, in terms of the judgment in Paradine v Jane, be
described as cases in which “the law creates a duty” which can arise even in the
absence of any contractual relationship between the bailor and the bailee or sub-
bailee who relies on the supervening event as a ground of discharge.94 They there-
fore come within the first of the two propositions stated in that case, rather than
within the second proposition, which is the one which enshrines the doctrine of
absolute contracts.95 Secondly, even that doctrine does not prevent contracting
parties from expressly or impliedly stipulating that a contracting party undertakes
no more than to exercise reasonable care, or some lower standard (such as the
same degree or care which he exercises in his own affairs). If, in spite of observing
the promised degree of care, that party fails to achieve the objective contemplated
by the contract, he is not in breach: the reason for this is not, strictly speaking, that
he is excused but that he has performed all that he undertook to do. That, perhaps,
is why the bailment cases to which Blackburn J. refers are no longer referred to in
modern discussions of frustration.96 There is also, in these cases, no question of

89
Below, Ch.8.
90
(1703) 2 Ld. Raym. 909.
91
(1863) 3 B. & s.826 at 838–839. The word “things” in this passage may be a misprint for
“thing”, which would agree with the verb (“has perished”).
92
This reference to risks taken by the bailee may be to the common carrier’s liability at
common law for loss of or damage to the goods unless caused by act of God or of the
Queen’s enemies or inherent vice.
93
Williams v Lloyd (1628) W. Jones 179: it will be seen that the exception was established
before Paradine v Jane.
94
See K H Enterprise v Pioneer Container [1994] 2 A.C. 324 at 336, citing Gilchrist Watt
and Sanderson Pty Ltd v York Products Pty Ltd [1970] 1 W.L.R. 1262.
95
See above, para.2–002.
96
Though there is a brief reference to the passage from Taylor v Caldwell here under
discussion in Palmer, Bailment (2nd ed.), pp.1267–1268.

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any protection of the bailor by reason of the supervening event: it seems to be

assumed that there is no outstanding obligation on his part. If there were (e.g.
because he had promised to pay a periodic charge for the safe custody of the
thing) the effect of the perishing of the thing would presumably be to bring that
obligation to an end since the most obvious meaning of the undertaking to pay
would be that payment should continue only for so long as the service for which
it was to be made continued to be rendered. The bailor would be entitled to rely
on the general principle that, under a contract for services, the rendering of those
services is (unless otherwise agreed) a condition precedent to the entitlement of
the party who is to render them to the agreed remuneration.97 References to an
“excuse” from a contractual obligation can have many meanings; it should not be
assumed that they necessarily denote discharge under what has become known as
the doctrine of frustration.

(3) Personal service: effects of death or unavailability

The third qualification of the doctrine of absolute contracts concerns contracts the 2–013
performance of which required the continued availability of a particular person.98
In one case, for example, a surety who had promised to pay the creditor £70 unless
the debtor either paid the creditor or surrendered his body to prison was held to be
discharged by the death of the debtor before proceedings to secure his arrest had
begun.99 The same principle applied to contracts of apprenticeship or of service:
these were dissolved by the death of either party.100 There is some support for two
extensions of this principle. First, the contract might be dissolved by disability
giving rise to a permanent incapacity to perform personal services. This appears
from the guarded judicial statement that “where a contract depends upon personal
skill and the act of God renders it impossible, as for instance in the case of a
painter employed to paint a picture who is struck blind, it may be that perform-
ance might be excused.”101 This statement was made five years before Taylor v
Caldwell, where Blackburn J., with equal caution, says that in such circumstances
performance might “perhaps”102 be excused. It is clear from the context that the
performance which, in these examples of personal incapacity, is said to be
“excused” is that of the party suffering from the incapacity. The converse problem
can also arise of the effect of one party’s incapacity on the other party’s duty to
render the counter-performance promised by the latter. This problem can be illus-
trated by contrasting two cases concerning claims by mariners for their wages.

97
Treitel (13th ed.), para. 17–015.
98
Hyde v Dean & Canons of Windsor (1596) Cro. Eliz. 552; Marshall v Broadhurst
(1831) 1 C. & J. 403 at 406; Wentworth v Cock (1839) 10 Ad. & E. 42 at 45–46.
99 Sparrow v Southgate (1622) W. Jones 29.
100 Taylor v Caldwell (1863) 3 B. & S. 826 at 836 (death of apprentice); Whincup v Hughes

(1871) L.R. 6 C.P. 78 (death of a master: no case of this kind is cited or otherwise
referred to in Taylor v Caldwell); cf. Farrow v Wilson (1869) L.R. 5 C.P. 744 (death of
employer).
101 Hall v Wright (1858) E.B. & E. 746 at 749, per Crompton J. in the Ct of Exch; Crompton

J.’s view that the defendant was liable, on the facts of Hall v Wright, was the one which
prevailed: see the discussion of the case at n.117, below.
102 (1863) 3 B. & S. 826 at 836.

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The first case is Beale v Thompson,103 where a seaman had signed on for a
voyage from Hull to St Petersburg and thence to London. A diplomatic dispute
having arisen between Great Britain and Russia, the ship was detained at
St Petersburg, and in November 1800 the crew were taken off by the Russian
authorities and “marched into the interior”.104 They were allowed back on board
in May 1801 (the diplomatic dispute having in the meantime been settled) and the
ship afterwards completed her voyage, earning freight. The shipowners, more-
over, received compensation for the detention from the Russian government. In
these circumstances, it is scarcely surprising that the crew’s claim for wages at the
contractual rate of £5 10s. per month was upheld, even though it included payment
for the period during which the crew were temporarily prevented, by reason of
their internment, from rendering any services. The result was not unjust as the
owners had been compensated from another source. The case was later explained
on the ground that, whatever effect the original internment of the crew may have
had on the contracts with them, they were later taken back and completed the
voyage.105 This point is reflected in Lord Ellenborough’s statement in Beale v
Thompson that even if (contrary to his view) there was any breach by the crew,
this had been waived106 when they were taken back by the owners.
2–014 Such emphasis on the completion of the voyage serves also to distinguish Beale
v Thompson from the contrasting case of Melville v De Wolf,107 where the claimant
was a mariner who had signed on for a voyage from England to the Pacific and
back. When the ship reached Montevideo, it appeared that the captain had shot
another member of the crew; and a tribunal set up at Montevideo under the
Merchant Marine Act 1850 ordered the claimant to be taken off the ship and sent
to England to give evidence at the captain’s trial for murder. The trial ended in an
acquittal, and it was not practicable after its conclusion for the claimant to rejoin
the ship. Wages were paid to the claimant up to the time of his having been taken
off the ship, and the action was brought for wages after that time. It is not without
interest to record that Blackburn appeared as counsel for the claimant and argued
that the defendant was liable for the wages in suit because “the case resembles
that of use and occupation for premises which have been burnt down”108—an
obvious reference to the cases following Paradine v Jane.109 In rejecting the
claim, Lord Campbell C.J. said that no blame could be attached to the claimant,
so that there had been “no forfeiture of wages” (i.e. of those which had become
due before he was taken off the ship); “but [the claimant] cannot be considered as
having earned the wages in dispute”.110 This merely amounts to saying that the
claimant had failed to perform a condition precedent to his entitlement to those
wages111; but the judgment goes beyond this narrow proposition when it adds that,
since “the relation of employer and employee could not be renewed within the

103
(1804) 4 East 546.
104
ibid. at 548.
105
Horlock v Beal [1916] 1 A.C. 486 at 494, 500, 511.
106
(1804) 4 East 546 at 564.
107
(1855) 4 E. & B. 844.
108
ibid. at 848.
109
See above, para.2–007.
110
(1855) 4 E. & B. 844 at 849.
111
cf. above, para.2–012 at n.97.

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scope of the original hiring . . . the contract must be considered as having been
dissolved by the supreme authority of the state, which is binding on both
parties”.112 This seems to be the language of the modern doctrine of discharge,
under which the employer would be no more entitled to call for resumption of
services under the contract, than he was liable to pay for them once they ceased
to be rendered. So far as the latter point was concerned, Beale v Thompson
was distinguished on the ground that there the voyage was completed by the
crew. One can also make the point that the interruption in Beale v Thompson was
only temporary, while in Melville v De Wolf there was a finding that it was not
practicable for the claimant to rejoin the ship.
A further, and controversial, group of cases consists of those in which super- 2–015
vening events do not bring about any actual inability to perform a “personal”
contract, but merely make such performance dangerous to the life or health of a
party. Lawrence v Twentiman113 appears to have decided that, “If a man covenant
to build a house before such a day, and then the plague is there before the day and
continues there till after the day, this excuses him from the breach of the covenant
for not doing it before the day; for the law does not wish to compel him to venture
his life for this, but he must do it afterwards”. In other words, the contract is not
discharged, but suspended. Suspension would probably not be available in the
modern law,114 but discharge by danger to a person’s health is now accepted as a
possibility.115 An American case decided before Taylor v Caldwell supports this
view: a person who had been employed to work at a sawmill was held to be justi-
fied in leaving before the end of the period of employment as he reasonably feared
that he would fall victim to a cholera epidemic which had broken out in the
vicinity of the mill.116 In England the scope of this exception to the doctrine of
absolute contracts was, however, restricted by the controversial case of Hall v
Wright.117 In an action for breach of promise of marriage, the defendant pleaded
that he was “afflicted by a dangerous bodily disease which occasioned frequent
and severe bleeding from his lungs and by reason of which the defendant was and
still is incapable of marriage without great danger to his life and therefore unfit for
the married state: where of the plaintiff had notice before the commencement of
the action”. The jury found that the facts pleaded by the defendant were true
except with regard to the allegation of the plaintiff’s having notice “which they
negatived”. On these findings, the four judges of the Court of Exchequer were
evenly divided, and the Exchequer Chamber held the defendant liable by a
majority of four to three. Two members of the majority relied on Paradine v Jane,
and one of these (Martin B.) said that “to admit exceptions of this kind utterly
destroys the certainty of the law”.118 A factor that weighed with the majority was
that the defendant’s illness had not made performance by him impossible (as in
the example of the painter who was struck blind) but merely dangerous. But in

112
(1855) 4 E. & B. 844 at 849.
113
1 Rolle’s Abridgement Condition G. pl. 10 (p.450), cited in Hall v Wright (1858) E. B.
& E. 746 at 758 and doubted ibid. at 790.
114
See below, para.15–035.
115
See below, para.4–024.
116
Lakeman v Pollard, 43 Me. 463 (1857); below, para.4–025.
117
(1858) E. B. & E. 746.
118
ibid. at 789. The other judge to rely on Paradine v Jane was Williams J. at 791.

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earlier decisions danger to health or life had been regarded as providing an excuse
for non-performance of “personal” contracts119; and a number of narrower grounds
for the decision in Hall v Wright can be extracted from the majority judgments:
for instance, that the defendant’s incapacity might have been caused by his volun-
tary conduct120; that the illness merely gave each party a right to rescind but that
they had decided in spite of the illness to go ahead with the marriage and that the
defendant had then deserted the plaintiff121; and that the plaintiff might have relied
on the defendant’s incapacity but that he could not rely on his own.122 Later courts
have regarded the decision as giving rise to considerable difficulty,123 and perhaps
the best explanation for it lies in the special characteristics of the former action124
for breach of promise of marriage. Although technically this was a contractual
action, it had many of the characteristics of an action in tort: e.g. it gave rise to a
claim for punitive damages125 and the death of either party was a bar to the
action.126 In the present context, the point to be emphasised is that the purpose of
such an action was generally to recover damages for a past injury; and this would
scarcely be assuaged by the supervening incapacity of the promisor. The point is
reflected in statements to the effect that, even if the defendant’s promise could not
be specifically enforced, and even if it was not in the circumstances reasonable for
him to marry the plaintiff, that was no reason why he should not pay her
damages.127 Hall v Wright is best regarded as a special exception, of limited scope,
to the general principle that supervening physical incapacity might discharge
contracts of a “personal” nature. The case does not seem to have intended to ques-
tion that principle; certainly it is not treated as having had any such effect in
Taylor v Caldwell, where Blackburn J. refers to the case, quoting from it the
example of the painter who is struck blind128: this example is taken from one of
the judgments129 which holds the defendant liable on the facts of Hall v Wright.

(4) Sale of goods: destruction of “specific” goods

2–016 A fourth qualification of the doctrine of absolute contracts was said by Blackburn
J. in Taylor v Caldwell to arise in certain cases involving the sale of goods. The
example that he gives is that of a sale of “specific chattels” to be delivered on a
future day, which perish without the fault of the seller after the property in them
has passed to the buyer but before the day fixed for delivery. The significance of
the passing of property was that risk generally passed with property, a rule stated

119
See at nn.113, 116 above; cf. Pole v Cetcovitch (1860) 9 C.B.N.S. 430 at 437 (above,
para.2–009, at n.74).
120
Martin B. at 789–790.
121
Crompton J. at 750.
122
Williams J. at 792.
123
See Jefferson v Paskell [1916] 1 K.B. 57 at 70.
124
It was abolished by Law Reform (Miscellaneous Provisions) Act 1970, s.1.
125
Quirk v Thomas [1916] 1 K.B. 516 at 527, 531, 538. As a general rule, punitive damages
are not available in an action for breach of contract: Treitel (13th ed.), para.20–023.
126
Finlay v Chirney (1887) 20 Q.B.D. 494 at 497–498.
127
(1858) E.B. & E. 746 at 790–791, per Martin B. and Williams J.
128
See para.2–013 at nn.101 and 102, above.
129
See para.2–013 at n.101, above.

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in the first edition of Blackburn on Sale.130 It followed that: “the purchaser must
pay the price and the vendor is excused from performing his contract to deliver,
which has thus become impossible.”131 A number of points arise from this alleged
qualification of the doctrine of absolute contracts.
First, in one obvious respect the result resembles that in Paradine v Jane132: the
buyer must pay the price (just as the tenant in Paradine v Jane had to pay the rent)
even though he does not obtain the counter-performance, i.e. delivery of the
goods. The only respect in which the example may differ from Paradine v Jane is
that in Blackburn J.’s example the seller is said to be excused. The corresponding
question in Paradine v Jane would have been whether the landlord was excused,
but that question was simply not in issue, there being no allegation of any breach
of covenant on his part.133 If Blackburn J.’s object was to find an example of a
case in which both parties were discharged,134 he would have done better to
discuss the case of an agreement to sell specific goods which perish before (not
after) the risk has passed to the buyer: in such a case the seller is discharged from
his obligation to deliver and the buyer from his obligation to pay the price.135 But
perhaps when Taylor v Caldwell was decided that development still lay in the
future. It is usually associated with the case of Howell v Coupland136 where a
seller of potatoes to be grown on specified land was held not liable when the crop
failed as a result of potato blight, without any default of the seller. In the Court of
Queen’s Bench, Blackburn J. based this result on Taylor v Caldwell,137 from
which it may be deduced that he regarded the buyer, no less than the seller, as
having been excused.138 Actually the buyer’s liability was not in issue, and the
Court of Appeal seemed to be content to make the point that the seller had not
entered into an “absolute contract”.139
Secondly, the authority on which Blackburn J. in Taylor v Caldwell relies for 2–017
his sale of goods qualification to the doctrine of absolute contracts is Rugg v
Minett140 which, in modern terminology, was scarcely a contract for the sale of
“specific”141 goods, but rather one of goods to be taken from an identified source.

130 At 152. See now Sale of Goods Act 1979, s.20(1); the various exceptions to this general
rule, discussed in paras 3–012 et seq., below do not affect the present discussion.
131 (1863) 3 B. & S. 826 at 837. For the relationship between risk and the modern doctrine
of frustration, see below, paras 3–008 et seq.
132
(1647) Aleyn 26, above, para.2–002.
133
See above, para.2–004.
134
See below, paras 2–040 to 2–048.
135
See now Sale of Goods Act 1979, s.7; below, para.3–004.
136
(1874) L.R. 9 Q.B. 462; affirmed (1876) 1 Q.B.D. 258.
137
L.R. 9 Q.B. 462 at 465.
138
See below, para.2–040.
139
(1876) 1 Q.B.D. 258 at 261, 263 (basing the result on the construction of the contract);
see below, paras 4–052 to 4–054.
140
(1809) 11 East 210.
141
See the definition of “specific goods” in Sale of Goods Act 1979, s.61(1): “goods iden-
tified and agreed on when a contract of sale is made”; below, para.3–015. The point is
not affected by the amendment to this definition made by Sale of Goods (Amendment)
Act 1995, s.2(d), which extends the meaning of “specific goods” so as to include “an
undivided share specified as a fraction or percentage of goods identified and agreed on
as aforesaid”. See further n.142, below.

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The sale was of turpentine in casks to be filled by the seller from the cargo of a
named ship.142 Evidently, the turpentine was in two large casks from which
25 smaller casks were to be filled, each with a specified amount; and what was
then left in the two original casks was to be sold as an unspecified amount. The
claimant bought 24 of the resulting 27 lots; and after some of the smaller casks
had later been filled, the whole of the turpentine was destroyed by an accidental
fire. A claim by the buyer for repayment of a deposit which he had paid failed in
respect of the casks which had been filled, but succeeded in respect of those which
had not yet been filled. It must have been assumed that the buyer could have been
sued for the price of the casks which had been filled, but that he was not liable for
the price of those which had not been filled. According to Lord Ellenborough C.J.,
these consequences followed from the passing of property,143 and hence of risk, in
the casks which had been filled—not from any doctrine of discharge. The distinc-
tion between these two sets of rules will be further discussed in Ch.3. Here it is
only necessary to make the point that the linkage between property and risk was
established well before Taylor v Caldwell: it is (as already noted) stated in the first
edition of Blackburn on Sale which had been published in 1845. In Taylor v
Caldwell, Blackburn J. says that in Rugg v Minett “it seems . . . rather to have
been taken for granted than decided that the destruction of the thing sold excused
the vendor from fulfilling his contract to deliver on payment”.144 The point was
not “decided” since no claim for damages was made by the buyer, who sued only
for the return of his deposit. In such an action, the buyer’s duty to pay may have
been indirectly in issue, but the same can hardly be said with regard to the seller’s
duty to deliver. Thus it is not easy to see how any point about the seller’s liability
was even “taken for granted”. It may be possible to infer from the passing of risk
that the seller was no longer liable: this depends on exactly what is meant by the
passing of risk, a point to be further discussed in Ch.3. On this reasoning, the
seller would only have been “excused” with regard to the casks that were filled.
His excuse with regard to those which were not filled was not established until
Howell v Coupland. We have seen145 that, in the Court of Queen’s Bench in that
case, Blackburn J. regarded the seller’s excuse as being based on Taylor v
Caldwell, and if the rule excusing the seller is derived from Taylor v Caldwell it
can scarcely form one of the bases of that decision in cases of the kind illustrated
by Rugg v Minett, i.e. those in which the sale was not one of “specific chattels”146
in the common law sense and would not now be one of “specific goods” as defined
by the Sale of Goods Act 1979 because at the time of the contract the goods were

142
i.e. the sale was of an undifferentiated part not specified as a fraction or percentage of
an identified bulk. Such a sale is not one of “specific goods” within the definition
quoted in the previous note: see Re Wait [1927] 1 Ch. 606; Sale of Goods Act 1979,
s.20A(1) (“specified quantity of unascertained goods”).
143
Property presumably passed in the contents of each of the smaller casks as these were
filled, the goods becoming ascertained at this stage. Under s.20A of the Sale of Goods
Act 1979 (as inserted by s.1 of the Sale of Goods (Amendment) Act 1995) property
could now pass even while the goods were still unascertained but only to the extent to
which the buyer has paid “the price”; and it is an open question whether the payment of
a deposit would satisfy this requirement.
144
(1863) 3 B. & S. 826 at 837.
145
Above, para.2–016 n.137.
146
Taylor v Caldwell (1863) 3 B. & S. 826 at 837.

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neither “identified and agreed on”147 nor an undivided share “specified as a

fraction or percentage”148 of such goods.
A case which does appear to concern the destruction of specific goods is Hinde 2–018
v Whitehouse149 where the sale was of numbered lots of sugar in a bonded ware-
house, on the terms that the goods were to be at the purchaser’s risk from the
“time of sale”. After the time of contracting, but before that of delivery and
payment, the sugar was destroyed by fire. The sugar was held to have been at the
risk of the buyer when it was destroyed, as the property in it had passed to the
buyer before that time. The actual outcome of the case was that the seller recov-
ered damages of £110; and the report does not indicate how this sum was assessed
or why the seller did not claim the price of £1,265 11s.3d. But the significant point
for the present purpose is the importance attached to the passing of property, and
hence of risk. One can infer from this that the buyer would have been under no
liability if the goods had been destroyed before the passing of property and risk.
The case would then have been one in which a buyer would have been entitled to
rely on the destruction of specific goods by way of defence to a claim for refusal
to accept and pay for the goods. Such reasoning would have come closer than
Rugg v Minett to establishing the proposition advanced by Blackburn J. in Taylor
v Caldwell and quoted above; but again it would have been based on the passing
of risk and it would have told us nothing directly about any possible liability of the
seller. It is, indeed, a puzzling feature of the development of this branch of the law
that in his formulation of the sale of goods rule in Taylor v Caldwell Blackburn J.
refers only to the transfer of property and not to the transfer of risk, although even
before that case he clearly regarded the linkage between the two concepts as well
established.150 So far as the release of the seller by destruction of the goods is
concerned, it is also interesting to note how the topic is dealt with in the second
edition of Blackburn on Sale (1885). There we find the proposition that, “If the
goods perish without any fault on the part of the vendor, he is relieved from his
obligation to deliver . . .”151; but, significantly, it is not supported by any pre-1863
decisions in which the contract concerned sale of goods.

(5) Admiralty: effects on contracts of shipwreck or capture

A fifth possible qualification of the doctrine of absolute contracts appears to have 2–019
existed in Admiralty and to have been recognised to some extent by the common
law courts. In discussing contracts involving personal service, we have already
considered cases in which mariners were, without any breach on their part, taken
off their ships and so prevented from performing the agreed work. There is also
the converse possibility that such prevention may result from the supervening
unavailability, not of the crew, but of the ship. This possibility is illustrated by The
Elizabeth,152 which concerned a seaman’s claim for wages. The claimant had
signed on for a voyage from Portsmouth to St Petersburg and back to Portsmouth.

147
Sale of Goods Act 1979, s.61(2), definition of “specific goods”.
148
ibid., as amended by Sale of Goods (Amendment) Act 1995, s.2(d).
149
(1807) 7 East 558.
150
Above, para.2–016 n.130.
151
At 230.
152
(1819) 2 Dods. 403.

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 2–019 C HAPTER 2—D EVELOPMENT

After the ship had taken on a cargo, she “without the default of any person” went
aground in the Baltic on September 26, 1818. In consequence she was so seriously
damaged that she was unable to complete her voyage during that year’s Baltic
season; and when this became clear the captain, on October 21, discharged the
crew who (apparently with some assistance from the captain) returned to England,
reaching London in the following January. The ship was repaired in Sweden and
was brought back to England by a Swedish crew in April 1819. The owners
admitted liability for wages up to the time of the crew’s discharge, while the crew
claimed wages up to the time of the return of the ship. Sir William Scott steered a
middle course between these positions. He evidently did not regard the discharge
of the crew as wrongful and held that they were entitled to their wages till they
reached England, plus the cost of their journey home: this, he said, was “all that
they could have had under their . . . contract”.153 In fact, some minor variation of
the contract was involved since the contract voyage was to Portsmouth, while the
wages awarded were until the return of the crew to London. Even setting this
point aside, the contract was clearly not “discharged” in October (when it became
clear that the ship would not be able to complete her intended voyage during the
1818 season), for the wages continued to be payable until the following January.
Nevertheless, some of the remarks made by Sir William Scott are of interest when
compared with the doctrine of absolute contracts.
2–020 First, it is obviously with some indignation that he rejects the argument that the
crew were entitled to their wages until April. If such a right existed, the master
would be “bound to keep his crew in an unemployed state, living on shore, keeping
holiday all winter, at the expense of his owners, who were to continue all that time
to pay, pro opere et labore, by virtue of the contract, though no work or labour can
be performed; and thus the price of industry was to be regularly paid to unoccu-
pied idleness!”154 Where a misfortune had “arisen from vis major, the act of God
which neither party had in contemplation at the time of the contract, it seems
hardly just that the whole inconvenience should fall upon one party, while a new
and unexpected benefit is to arise from this common calamity—the benefit of
living in ease and safety on shore at the expense of the other”.155 Put in another
way, the owners’ grievance would have been that they would have had to pay
without getting the counter-performance for which they had bargained. That was
of course, exactly the grievance of the tenant in Paradine v Jane, but there it did
not engage the sympathy of the court. What landlords were expected to provide in
return for the rent was (to say the least) more narrowly interpreted that what
seamen were expected to provide for their wages; in this respect the common law
may well have reflected prevailing social attitudes. Lord Nottingham, indeed, had
taken the position that, “A man should not pay rent for what he cannot enjoy, and
that occasioned by an accident which he did not undertake to stand to . . .”.156 In
the law of the landlord and tenant, that argument did not prevail, even in equity,157
but the point made by Lord Nottingham is similar to that made by Sir William
Scott in his reference to a “holiday all winter at the expense of the owners”.

153
ibid. at 410.
154
ibid. at 411.
155
ibid. at 408–409.
156
Brown v Quilter (1764) Amb 619 at 621.
157
See above, para.2–007.

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Secondly, Sir William Scott refers, in another dictum, to an apparently then

well-recognised principle of maritime law: “A total loss by wreck happens. This
operates as a total loss of wages”.158 A somewhat similar point had been made by
Lord Ellenborough C.J. in the earlier and contrasting case of Beale v Thompson,159
another case concerning seamen’s wages. One aspect of that case has already been
discussed, namely the effect of the fact that the crew were forcibly taken off the
ship by the Russian authorities; it will be recalled that the crew were nevertheless
entitled to their wages.160 So far as this aspect of the case is concerned, internment
in Russia could scarcely be regarded in the same light as the “holiday” in Sweden
(even if only a winter one) allegedly claimed by the crew in The Elizabeth.161
Another crucial distinction between the two cases was that in Beale v Thompson
the crew had eventually worked the ship home, while in The Elizabeth they had
not. But in the present context the principal point of interest in Beale v Thompson
was that the Russian authorities had seized the ship as well as the crew; and even
if the crew had been left on board the ship could not have left St Petersburg. So
far as this aspect of the case was concerned, it is interesting to note the assumption
made “on all sides” and apparently viewed with approval by Lord Ellenborough
C.J. that “the effect of capture is to dissolve the contract, both for freight and
wages, between the respective parties thereto”.162 It is not difficult to see that
claims for wages and freight would be defeated by the fact that the capture would
prevent the occurrence of the conditions precedent on which these payments
would have been due: wages would be due only when freight was paid on the
completion of the voyage (freight being then “the mother of wages”163), and
freight would become due only on delivery of the cargo at the contractual destina-
tion (it being clearly assumed that there was no stipulation for advance freight).
But it would not follow that the contracts would be dissolved: in Atkinson v
Ritchie164 Lord Ellenborough himself was to hold (only five years later) that a
threatened detention of (or “embargo” on) British ships at St Petersburg did not
relieve the shipowner from liability in damages for sailing away. His reliance
there on Paradine v Jane at least casts some doubt on the assumption made in
Beale v Thompson165 if the phrase “to dissolve the contract for both” is to be
taken literally; though a distinction can be drawn between the actual “capture”
envisaged in that dictum and the prospective “embargo” (in fact imposed six
weeks later) in Atkinson v Ritchie.166
A final possibility is to argue that the qualification to the doctrine of absolute 2–021
contracts recognised in the dicta in Beale v Thompson167 and in The Elizabeth168
is based on the principle (already discussed) which applies to cases of supervening

158
(1819) 2 Dods. 403 at 408.
159
(1804) 4 East 546.
160
See above, para.2–013.
161
Above, at n.154.
162
(1804) 4 East 546 at 559.
163
For use of this well-worn phrase, see e.g. Cutter v Powell (1795) 6 T.R. 320 at 321.
164
(1809) 10 East 530.
165
Above, n.162.
166
See, however, Pole v Cetcovitch (1860) 9 C.B.N.S. 430 (where prospective capture was
held to excuse a shipowner’s delay in performing a charterparty).
167
Above, n.162.
168
Above, n.152.

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physical incapacity in contracts of personal services. That principle clearly applies

where the personal incapacity is that of the employer: e.g. on his death. It can be
argued that loss or capture of the ship likewise creates an “incapacity” on the part
of the shipowner to receive the contractual services; and that incapacity of either
party discharges both. But in cases of the present kind, the “incapacity” (if it can
be so described) did not affect the person of the employer; and, where the inca-
pacity affected merely the workplace, it is very doubtful whether any principle of
discharge was recognised outside the area of maritime law. One wonders what the
effect of the supervening events in Paradine v Jane169 might have been on
contracts of employment between the defendant and his farm labourers. When
yearly hirings were common, this could have been a significant question170 and
similar problems could have arisen where commercial or industrial premises were
destroyed during the currency of long-term contracts of employment. The trend
towards short-term contracts would have reduced the significance of such prob-
lems and may account for the scarcity of modern authority on the point. Such
authority as there is seems to indicate that the employer would be discharged only
where it appeared from the terms of the contract that the services were to be
performed only at the workplace which, by reason of the supervening events, has
become unavailable.171

III. TAYLOR V C ALDWELL AND LOSS A LLOCATION

(1) The bases of the doctrine of discharge

2–022 Taylor v Caldwell172 is generally regarded as a turning point in this branch of the
law, as the case in which the law moved away from the doctrine of absolute
contracts to the modern doctrine of discharge by supervening events. The change
was brought about by the familiar judicial technique173 of deducing a general
principle from a series of particular examples. In Taylor v Caldwell, Blackburn J.
relies on three of the mitigations of the doctrine of absolute contracts which have
been discussed above: cases in which death or permanent physical incapacity
prevent performance of a contract for personal services, cases in which specific
goods are sold and perish after the property in them has passed to the buyer, and

169
(1647) Aleyn 26, above, para.2–002.
170
According to a dictum in Cutter v Powell (1795) 6 T.R. 320 at 326 in cases of a yearly
hiring the general rule was that the servant was to get his wages “for the time he serves,
though he does not continue in service for the whole year”—but this seems to refer to
the case where the servant leaves or is disabled, rather than to the case where his work-
place become unavailable.
171
e.g. Turner v Goldsmith [1891] 1 O.B. 544; cf. also Minnevitch v Café de Paris (Londres)
Ltd. [1936] 1 All E.R. 884, below, para.5–059 (where the contract was not discharged).
172
(1863) 3 B. & S. 826.
173
Also used by Blackburn J. in another famous judgment, that in Rylands v Fletcher
(1866) L.R. 1 Ex. 265, affirmed (1868) L.R. 3 H.L. 330. It is interesting to note that,
while in Rylands v Fletcher, Blackburn J. used this technique to create a principle of
strict liability in tort, in Taylor v Caldwell he used it to the opposite effect: i.e. to qualify
a principle of strict liability in contract. Perhaps he saw a greater need to protect propri-
etary than contractual rights.

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 TAYLOR V C ALDWELL AND L OSS A LLOCATION 2–023

cases in which the subject-matter of a bailment was destroyed without any default
on the part of the bailee. From these examples, he deduces the general principle
which applies where “from the nature of the contract, it appears that the parties
must . . . have known that it could not be fulfilled unless . . . some particular
specified thing continued to exist”.174 He states the effect of the principle to be
that “the parties shall be excused in case, before breach, performance becomes
impossible from the perishing of the thing without default of the contractor”.175 It
is a significant feature of this formulation that “the parties” are excused, or, as the
judgment later puts it, “both parties are excused”.176 That is actually a surprising
conclusion, which is not directly supported by the three examples from which the
general principle purports to be derived.
In the personal service cases, the only point made by Blackburn J. is that the 2–023
person who is to render the services (or, in the case of apprentice, the father who
also covenants that they are to be rendered) is excused by the death or incapacity
of that person177: the liability of the other party is not under discussion. No doubt
that liability will often simply not arise since generally the promise of the other
party will be one to pay money, and performance of the services will be a condi-
tion precedent to the accrual of that party’s liability to make the payment.178
Blackburn J.’s proposition would have been more completely supported by
authority to the effect that the other party was excused from some other promise:
e.g. by discussion of the question whether the incapacity of an apprentice could
discharge the master from his obligation to teach; but the judgment contains no
reference to this possibility.
Similarly, in the bailment cases the only point made by Blackburn J. is that the
perishing of the subject-matter “excuses the . . . bailee from his promise to rede-
liver the chattel” so long as it does not arise “from the fault of the . . . bailee from
some risk which he has taken upon himself”.179 As already noted, there is, in this
example, no question of any excuse protecting the bailor, for it is assumed that
there is no outstanding obligation on his part; but such a question would arise if
there were some such obligation: e.g. where the bailor had promised to pay a
periodic charge for the safe-custody of the thing. Under Blackburn J.’s general
principle, that obligation would presumably be discharged180; and in this respect
the general principle would go beyond the examples from which it is derived.
Even more remarkable is the use made of the example of the sale of specific
goods which perish after the property (and hence the risk) in them has passed to
the buyer. As already noted, in this situation Blackburn J. makes it clear that the
seller is excused but the buyer is not181; and so the case is not one in which “both
parties are excused”.182 Indeed the buyer’s position resembles that of the tenant in

174
(1863) 3 B. & S. 826 at 833.
175
ibid. at 834.
176
ibid. at 840 (italics supplied).
177
ibid. at 836.
178
e.g. Cutter v Powell (1795) 6 T.R. 320 (where there is accordingly—and appropri-
ately—no reference to the doctrine of absolute contracts as stated in Paradine v Jane
(1647) Aleyn 26, above, para.2–002).
179
(1863) 3 B. & S. 826 at 839.
180
ibid. at 840 (“both parties are excused”).
181
ibid. at 837; above, para.2–016.
182
(1863) 3 B. & S. 826 at 840.

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Paradine v Jane183 in that he must pay without getting the benefit for which he
had bargained. Blackburn J.’s sale of goods example differs in nature from
Paradine v Jane only in explicitly stating that the party whose performance has
become impossible (i.e. the seller) is excused. In Paradine v Jane this point was
not in issue since no claim was made against the landlord.184

(2) The decision in Taylor v Caldwell

2–024 Taylor v Caldwell185 does not itself very closely resemble any of the three groups of
cases on which it purports to be based; the significance of the case lies in the general
principle which Blackburn J. (rightly or wrongly) derived from some of the early
mitigations of the doctrine of Paradine v Jane. The facts of Taylor v Caldwell are
worth stating in some detail, so as to bring out a number of unusual features of the
case. The contract, made on May 27, 1861, provided that the defendants were to let
the plaintiffs have the use of the Surrey Gardens and Music Hall (it is interesting
to note the order) “for the purpose of giving a series of four grand concerts” on
June 17, July 15, August 5 and August 19, 1861. The plaintiffs were to pay £100 in
respect of each concert “in the evening of the said respective days”; they also agreed
to provide “all the necessary artistes for the said concerts, including Mr. Sims
Reeves,186 God’s will permitting”.187 The contract went on to give the plaintiffs the
right to certain box-office receipts, and it gave them the right to advertise the
concerts at the entrance to the Gardens one week before each of the specified days.
The defendants, for their part, undertook not only to make the premises available,
but also to maintain specified side-shows in the Gardens. On June 11, the Music
Hall was destroyed by fire, and “the destruction . . . was so complete that . . . the
concerts could not be given as intended”188; the cause of the fire appears to have
been the carelessness of a plumber in leaving an unattended flame in the roof of the
Hall.189 The plaintiffs claimed damages in respect of the expenses190 which they had
incurred in advertising and preparing for the concerts. Their claim was dismissed on
the ground that “in contracts in which the performance depends on the continued
existence of a given person or thing, a condition is implied that the impossibility of
performance arising from the perishing of the person or thing shall excuse the
performance”.191 A number of points arising from this formulation call for comment.
2–025 First, it is significantly narrower than that found earlier in the judgment,192 the
“performance” which is excused being only that which has become impossible.

183
(1647) Aleyn 26.
184
See above, para.2–004.
185
(1863) 3 B. & S. 826.
186
A well-known tenor who wrote a number of books, including The Life of Sims Reeves
by Himself (1888); this disappointingly contains no reference to the destruction of the
Surrey Music Hall in 1861.
187
(1863) 3 B. & S. 826 at 830.
188
(1863) 3 B. & S. 826 at 832–833.
189
See the report of the trial in The Times, December 19, 1861 (where the statement that
the payments of £100 were to be made by the defendants to the plaintiffs has evidently
transposed the parties).
190
According to the report in The Times, above n.189, the amount claimed was £58.
191
(1863) 3 B. & S. 826 at 839.
192
ibid. at 834, quoted above, at n.176.

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 TAYLOR V C ALDWELL AND L OSS A LLOCATION 2–025

This was the only point which actually arose for decision in Taylor v Caldwell,
where no attempt was made to enforce any of the plaintiffs’ undertakings. It is
nevertheless clear that Blackburn J. regarded the destruction of the Hall as
excusing the plaintiffs no less than the defendants: according to the concluding
paragraph of the judgment, “both parties are excused, the plaintiffs from taking
the gardens and paying the money, the defendants from performing their promise
to give the use of the Hall and Gardens and other things”.193 The significance of
the discharge of both parties will be more fully discussed below.194
The second point is that, by restricting his formulation to “the impossibility of
performance arising from the perishing of the person or thing”195 Blackburn J.
skilfully avoids any direct conflict with Paradine v Jane196 since there the subject-
matter had not perished. The treatment of that case in Taylor v Caldwell merits
some further comment. The case is cited by counsel for the plaintiffs,197 but there
is no direct reference to it in the judgment, which does, however, refer to a note in
Williams’ Saunders198 where in turn Paradine v Jane is cited. The doctrine of
Paradine v Jane is, moreover, restated in Taylor v Caldwell: “There seems to be
no doubt that where there is a positive contract to do a thing not in itself unlawful,
the contractor must perform it or pay damages for not doing it, although in conse-
quence of unforeseen accidents, the performance of his contract has become
unexpectedly burdensome or even impossible.”199 Blackburn J. (sitting in the
Court of Queen’s Bench) was in no position to deny the validity of this rule, which
has been “recognised as the general rule by all the Judges in the much discussed
case200 of Hall v Wright”201: that was a decision of the Exchequer Chamber and so
binding on the Queen’s Bench. Indeed, five years after Taylor v Caldwell
Blackburn J. himself restated what is clearly recognisable as the doctrine of
Paradine v Jane: “where a party has either expressly or impliedly undertaken
without any qualification to do anything, and does not do it, he must make
compensation in damages, though the performance was rendered impracticable
by some cause over which he had no control.”202 This may be an attenuated
version of Paradine v Jane, in that what is “impracticable” is not the same as what

193 (1863) 3 B. & S. 826 at 840.

194 See below, paras 2–040 et seq.
195
Above, at n.191.
196
(1647) Aleyn 26.
197
(1863) 3 B. & S. 826 at 831.
198
Walton v Waterhouse, 2 Wms. Saund (6th ed.), p.421, n.2 cited in Taylor v Caldwell
(1863) 3 B. & S. 826 at 833.
199
ibid.
200
An expression echoed in Jefferson v Paskell [1916] 1 K.B. 57 at 70, where Hall v
Wright (1858) E.B. & E. is said to have been “much observed upon”. For a discussion
of Hall v Wright, see above, para.2–015.
201
(1863) 3 B. & S. 826 at 833.
202
Ford v Cotesworth (1868) L.R. 4, Q.B. 127 at 138. It will be recalled, too, that in
Melville v De Wolf (1855) 4 E. & B. 844 at 848 Blackburn had, as counsel, relied on
what was evidently the doctrine of Paradine v Jane. see above, para.2–014, at n.108. cf.
his approval during the argument in Geipel v Smith (1872) L.R. 7 Q.B. 404 at 407 of
counsel’s proposition closely resembling the then traditional formulation of the doctrine
of absolute contracts. For other statements of the doctrine after Taylor v Caldwell, see
Nickolls v Marsland (1876) 2 Ex.D. 1 at 4 and below, para.2–033, at nn.253–355.

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is “impossible”—but the citation in the same judgment of an earlier decision203

applying the doctrine of Paradine v Jane makes it doubtful whether Blackburn J.
here intended to attach any importance to the distinction (to be more fully
discussed in Ch.6) between impossibility and impracticability. Nor does it seem
that in Taylor v Caldwell he intended to make an abrupt departure from the prin-
ciple of Paradine v Jane—a principle which had been repeatedly applied in the
two centuries preceding Taylor v Caldwell. The significance of Taylor v Caldwell
lies rather in its formulation of an exception to the doctrine of Paradine v Jane.
The development was no doubt facilitated by the fact that in Taylor v Caldwell the
action was brought against the party whose performance had become impossible,
while in Paradine v Jane it was only the counter-performance for the promise in
suit which was affected by the supervening event. It is also significant that the
formulation of the exception took a form which made it possible for later judges
to extend the scope of the exception, so that in course of time what was the excep-
tion became the general rule, and conversely. An important reason why the excep-
tion was capable of being thus extended beyond its original scope (applicable only
to the perishing of a particular person or thing) lay in its rationale, which restricted
the old general rule to cases where the contract was “positive and absolute, and
not subject to any condition express or implied”.204 The reference, in particular, to
implied conditions allowed for flexibility, being capable of application where
supervening events other than the “perishing” of a person or thing interfered with
performance. Accordingly, Taylor v Caldwell forms the starting point for the
development of the modern doctrine of discharge, even though it did not at once
create that doctrine.

(3) Advantages of the doctrine of discharge

2–026 The modern doctrine of discharge, which has its roots in Taylor v Caldwell, is
generally thought to provide a better solution, than that provided by the doctrine
of absolute contracts, to the problems of loss allocation which arise where
performance is prevented by supervening events for which neither party to the
contract is responsible. In explaining this view, it will be convenient to make use
of a set of terminological distinctions which are familiar to civil lawyers though
they have not in the past been commonly found in English (or other common law)
discussions of the topic. We shall refer to the person who has undertaken the
performance which has become impossible as the debtor of that performance and
the other party as the creditor of that performance (their roles as debtor and cred-
itor are, of course, reversed in relation to the counter-performance for the now
impossible performance). The effect of the doctrine of discharge is that the debtor
of the now impossible performance is excused from his duty to render it, while the
creditor of that performance is excused from rendering the counter-performance,
i.e. (usually) from having to pay a sum of money for the performance which had
been promised by the debtor. In the most common contractual situation, in which
some performance other than a payment of money is to be exchanged for such a
payment, the effect of the doctrine of Taylor v Caldwell is that the “performance

203
Barker v Hodgson (1814) 3 M. & S. 267, cited in Ford v Cotesworth, above, at 138.
204
Taylor v Caldwell (1863) 3 B. & S. 826 at 833.

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risk” of the now impossible performance is on the creditor of that performance

(i.e. he will neither receive the performance nor be entitled to damages for non-
performance) while the “price risk”, or “counter-performance risk”205 is on the
debtor of the now impossible performance (i.e. he will not be entitled to the prom-
ised counter-performance, which is usually the money promised by the creditor to
the debtor in exchange for the performance which has become impossible). The
statement in Taylor v Caldwell that “both parties are excused”206 has the effect
that each party bears one of these two risks. The plaintiffs in that case were the
creditors of the impossible performance and were not entitled to damages for
the defendants’ failure to render it, while the defendants, who were the debtors of
the impossible performance, were (it was assumed, though not actually decided)
not entitled to the agreed price. This division of the two risks operates as a kind of
loss-splitting. There would be no such loss-splitting if both the performance risk
and the payment risk had come to rest on the same party, i.e. if the plaintiffs in
Taylor v Caldwell had been entitled to damages and had not been liable for the
price, or if the defendants had not been liable in damages but had been entitled to
the price. We shall see that in some of the coronation cases to be discussed in Chs
7 and 15 the latter result was in fact reached.207 Criticism of these cases, and their
eventual reversal,208 can be explained by saying that cases in which the hirer was
liable to pay in spite of having no claim against the other party were open to
objection precisely because they united the performance risk and the payment risk
in the same party (i.e. in the hirer). Paradine v Jane209 is similarly thought to have
united these, two risks in the tenant, and this is why Taylor v Caldwell210 (which
divides the two risks) is regarded as providing, in general, the preferable result.
Strictly speaking, in making this comparison, reference should be made to the
doctrines generally derived from the two cases, rather than to the decisions them-
selves. Paradine v Jane is actually concerned only with the payment risk and
holds this risk to be on the creditor of the performance which had been interfered
with (it would be question-begging to say that it had become impossible), i.e. the
tenant was liable for rent in spite of having been, without the landlord’s default,
deprived of possession. The performance risk (i.e. the question whether the land-
lord was liable in respect of the tenant’s loss of possession) was not in issue; and
if it had received a negative answer, the probable reason for this was that the land-
lord had made no relevant promise211—not that he was excused from performing
any obligation which he had undertaken. A different performance risk is dealt
with in the much cited and frequently applied dictum in Paradine v Jane to the
effect that the tenant of a house is liable on his express covenant to repair although
the house is “burnt by lightning or thrown down by enemies.”212 Here the debtor

205
The terms “performance risk” and “payment (or counter-performance) risk” are
borrowed from German law, which distinguishes, e.g. between “Leistungsgefahr” and
“Preisgefahr”: see Larenz, Schuldrecht (14th ed.), Vol.I, pp.308–310; Esser & Schmidt,
Schuldrecht (6th ed.), Vol.I, pp.314, 317.
206
(1863) 3 B. & S. 826 at 840.
207
e.g. Chandler v Webster [1904] 1 K.B. 493, below, para.15–051.
208
See below, paras 15–052, 15–054.
209
(1647) Aleyn 26, above, para.2–002.
210
(1863) 3. B. & S. 826, above, para.2–024.
211
See above, para.2–004.
212
(1647) Aleyn 26 at 27, above, para.2–002.

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of the performance which is affected by the supervening event is the tenant, and
the performance risk is on him. At first sight, this may appear to be contrary to the
modern rule which generally places the performance risk on the creditor. But, as
has been suggested above,213 the dictum on tenants’ covenants to repair is not
concerned with impossibility at all: it is concerned with the cause of the disrepair,
rather than with the possibility of remedying it. There is nothing impossible about
executing the repairs: the question is simply whether, on the true construction of
the covenant, the tenant’s promise extends (as it has commonly been held to do)
to the “repairing” of damage or destruction of the kind which has occurred.
2–027 The crucial difference between the two leading cases is in their underlying
assumptions. These are that in Paradine v Jane the performance risk and the
payment risk are united in one party (both being borne by the tenant) while in
Taylor v Caldwell they are divided, thus splitting the loss. It may be noted that, so
long as the two risks are divided, loss-splitting occurs, no matter how the division
is made. Thus in a case like Taylor v Caldwell loss-splitting would have occurred
not merely by holding that the defendants were neither liable in damages nor enti-
tled to the price, but also by holding that they were so liable, provided that they
were also so entitled. The latter position was, in substance, that taken by those
who sought to justify Paradine v Jane by arguing that the tenant there had (or
should have had) a cross-claim against the landlord214; but if such a claim had
been made it would probably have failed for the reason already given,215 i.e.
because the landlord had not made any promise extending to the type of “evic-
tion” which occurred. The modern view is that loss-splitting is more satisfactorily
achieved by placing the performance risk on the creditor of the impossible
performance and the price risk on the debtor, rather than by adopting the converse
solution of putting the performance risk on the debtor and the price risk on the
creditor. One reason for this choice between these two solutions may rest on intui-
tion or common sense: where performance has become impossible without a
party’s default, it is a natural reaction to say that he should not be liable for failing
to render it, and that the other party should not have to pay for a performance
which he does not receive. A second reason for preferring this choice is that it
discourages the multiplicity of claims which would be the consequence of its
converse: if, in Taylor v Caldwell, the plaintiffs had been entitled to damages but
liable for the price, each party would have needed to sue the other. From this point
of view a solution by which neither party can sue the other is more elegant and
more economical than one under which each can sue the other; and both solutions
equally provide a form of loss-splitting.
Even in the modern law, the concentration of the performance and price risks in
one party survives in cases in which the “risk of loss” is said to have passed at a
certain stage in the performance of the contract. If, for example, the risk of loss
has passed to a buyer of goods, and the goods are then destroyed before delivery,
the buyer (the creditor of the impossible performance) bears both the performance
risk (he cannot claim damages) and the price risk (he must pay). This is because
where goods are destroyed after the risk of loss has passed the doctrine of discharge

213
See above, para.2–005.
214
See Brown v Quilter (1764) Amb. 619, above, para.2–007.
215
See above, para.2–004.

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(under which the price risk would be on the seller) is excluded.216 The buyer’s
position is then similar to that of the tenant in Paradine v Jane, and indeed one
modern view of that case is that the result there is to be explained on the ground
that the risk of loss had passed to the tenant on execution of the lease.217
The discussion of loss allocation under the modern doctrine of discharge has so 2–028
far been based on the simple assumption that the contract belongs to the normal
type of bilateral contract under which a thing or a service is supplied in exchange
for a sum of money. It follows from the doctrine of discharge that the person to
whom the thing or service was to be supplied cannot recover damages in respect
of the benefit that he expected to derive from it, while the prospective supplier
cannot recover the agreed remuneration or price. Thus in Taylor v Caldwell the
defendants could not have claimed the promised payments of £100 per night; nor
could the plaintiffs have claimed damages for loss of their expected profits. In fact
no such claims were made: the only claim was one by the plaintiffs for their
wasted expenditure. The result of the decision was that the whole of this loss had
to be borne by the plaintiffs; and it is questionable whether this was an altogether
satisfactory solution. One possible argument is that the outcome was just since the
defendants had also incurred expenses on the side-shows. But there are no grounds
for supposing that there was equality in the two sets of expenses; and in any event
it appears that the Gardens remained open, and that charges were made for
admission,218 so that the defendants’ expenses were not wholly wasted. It also
appears that the defendants received some compensation for their loss through
insurance of the Hall219; and the cost to them of the insurance was presumably
reflected in the payments of £100 per night which were to be made by the plain-
tiffs. It further seems reasonable to suppose that the defendants could have recov-
ered damages for negligence or breach of contract from the plumber whose
carelessness led to the fire220; and that in such an action damages could have been
recovered for loss of profits suffered as a result of the destruction of so obviously
a profit-earning thing as the Music Hall. The effect which should be given to these
various factors is by no means easy to determine; but it is clear that Taylor v
Caldwell, while representing an advance on the doctrine of absolute contracts,
does not by any means provide the ideal solution of the problem of allocating the

216
Below, para.3–008.
217
cf. Megarry and Wade, The Law of Real Property (8th ed.), para.18–101; but see below,
paras 11–004 to 11–005.
218
According to The Times, June 12, 1861: “By 5 o’clock the flames were entirely subdued
and most of the engines had left, but they were scarcely out of sight when the band of
the Gardens commenced playing and an announcement was posted informing the public
that the price of admission was one shilling.”
219
From The Times, June 13, 1861, it appears that the defendants were themselves lessees
of the Hall, and that, “The building is insured, and, it is believed, to the full amount”. It
is not clear whether the insurance was in the names of the defendants or of their lessors;
in the latter event the defendants would have had rights in respect of the application of
the insurance moneys under Fires Prevention (Metropolis) Act 1774, s.83. Quaere
whether moneys payable to the defendants’ lessor but applied for the benefit of the
defendants by virtue of the 1774 Act would now fall within Law Reform (Frustrated
Contracts) Act 1943, s.1(5), discussed below, paras 15–083 et seq.
220
See above, para.2–024, at n.189.

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loss which results from wasted expenses. We shall return to these questions when
discussing the effects of discharge.221

(4) Survivals of the doctrine of absolute contracts

2–029 Although the doctrine of discharge has now in general displaced the doctrine of
Paradine v Jane, the latter doctrine does still survive to some extent. The cases in
which it survives can be divided broadly into two groups. The first can be said to
consist of historical survivals: that is, of cases in which the doctrine still applies to
certain types of contracts merely because it had been applied to such contracts
before Taylor v Caldwell was decided. The second consists of cases in which the
doctrine continues to apply because the reasoning on which it was based still
retains its force in relation to them.
(a) Historical survivals
2–030 In discussing the doctrine of absolute contracts, we saw that its most frequent
application was to leases, in which its effect was that the destruction of buildings
on the demised premises did not discharge the tenant’s covenant to pay rent or his
covenant to repair.222 These rules have proved to be extraordinarily tenacious.
They continued to be applied in cases decided after Taylor v Caldwell: in such
cases it was (for example) held that the tenant of a house at common law223
remained liable for rent after the house had been destroyed by enemy action,224
and that such destruction did not relieve him from liability under his covenant to
repair225; nor presumably would it relieve a landlord from any covenant which he
may have made to repair. The pre-Taylor v Caldwell cases which follow Paradine
v Jane continue, moreover, to be regarded as authoritative in modern works on
real property and landlord and tenant.226 The reason why the doctrine of absolute
contracts has proved to be so tenacious in this branch of the law is that before the
National Carriers case227 in 1981 it was doubtful whether leases of land could
ever be frustrated, and that, even in that case, the House of Lords emphasised that
the frustration of such a lease would be a very rare event. The exact effects of the
National Carriers case on the old landlord and tenant cases which applied
Paradine v Jane remain to be worked out; but for the moment the general assump-
tion appears to be that they are still good law. This assumption is interestingly
reflected in the Landlord and Tenant Act 1985 which provides that the statutorily
implied landlord’s repairing covenant “shall not be construed as requiring the
lessor . . . to rebuild or reinstate the premises in the case of destruction or damage
by fire, or by tempest, flood or other inevitable accident . . .”.228 This statutory
language seems to be a distant echo of Paradine v Jane, the draftsman evidently

221
See below, paras 15–020, 15–082.
222
See above, para.2–007.
223
For special statutory provisions, see Landlord and Tenant (War Damage) Act 1939, s.1.
224
Whitehall Court Ltd v Ettlinger [1920] 1 K.B. 680.
225
Redmond v Dainton [1920] 2 K.B. 256.
226
e.g. Megarry and Wade, The Law of Real Property (8th ed.), para.105; Hill and Redman,
Law of Landlord and Tenant, (18ed., 2013 issue) para. [2950]–[2960] n.7.
227
National Carriers Ltd v Panalpina (Northern) Ltd [1981] A.C. 675; below, Ch.11.
228
s.11(2)(b).

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thought that the landlord needed the express statutory exemption. Whether this is
a correct interpretation of the authorities is another matter: it is at least arguable
that an implied covenant to repair does not fall within the doctrine of absolute
contracts but rather within the first of the two propositions in Paradine v Jane, i.e.
within that which applies “where the law creates a duty”: here destruction “by
tempest”229 is said to operate as an excuse for the tenant (in cases of waste), and
there seems to be no reason why it should not correspondingly excuse the landlord
from liability under a covenant implied in law.
A second situation (which somewhat resembles that of the repairing covenant 2–031
cases) arose out of fire insurance policies giving the insurer the option of either
paying the sum insured or reinstating the premises. We have seen that in Brown v
Royal Insurance Co230 the insurer, having elected to reinstate, was not excused by
a subsequent order of the local authority for the demolition of the premises, two
judges taking the view that performance had not become impossible (but only
more expensive) and a third that, even though performance had become impos-
sible, that was no excuse. Brown’s case seems to have survived Taylor v Caldwell,
having been cited with approval in the House of Lords in 1922,231 though it may
be significant that the approval occurred in a case in which a plea of frustration
was rejected because the subject-matter was a lease of land and it was then thought
that the doctrine of frustration did not apply to such leases. The view has been
expressed that, if the problem of Brown’s case arose today, the court would have
to consider whether the contract was frustrated.232 It seems, however, highly
unlikely that frustration would occur, since in the case put there is no impossi-
bility of doing the very thing promised. The further question arises whether the
contract would be frustrated if, after reinstatement had begun, the buildings
suffered further damage or destruction by some supervening event (other than one
of the perils insured against) for which neither party was responsible. The answer
to this question would depend on the rules relating to the passing of risk in building
contracts (to be discussed in Ch.3)233 since the effect of the insurer’s election to
reinstate is to turn the insurer’s promise into a contract of this kind.234
The third group of cases, to which the doctrine of absolute contracts was applied 2–032
before Taylor v Caldwell, arose out of contracts for the carriage of goods by sea.
In such cases it was, for example, held that a shipper was not discharged by
prohibition or by pestilence making it dangerous for him to load a cargo,235 or by
a foreign embargo,236 or by inability to procure a cargo237; and that an embargo
or certain other supervening events preventing the prosecution of the voyage
did not excuse the shipowner.238 The fate of some of these cases has been signifi-
cantly different from that of the landlord and tenant cases; and the reason for the

229
(1647) Aleyn 26 at 27; above, para.2–002.
230
(1859) 1 E. & E.; above, para.2–006 and see below, para.3–058.
231
In Matthey v Curling [1922] 2 A.C. 180 at 229.
232
MacGillivray on Insurance Law (12th ed.), para.22–009.
233
See below, paras 3–053 et seq.
234
MacGillivray on Insurance Law (12th ed.), para.22–006.
235
Bligh v Page (1801) 3 B. & P. 295n; Barker v Hodgson (1814) 3 M. & S. 267.
236
Hadley v Clarke (1789) 8 T.R. 259; Sjoerds v Luscombe (1812) 16 East 201.
237
Hills v Sughrue (1846) 15 M. & W. 253 (as to which see below, n.246).
238
Shubbrick v Salmond (1765) 3 Burr. 1637; Hadley v Clark (1799) 8 T.R. 259; Atkinson
v Ritchie (1809) 10 East 530.

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difference is that it was recognised soon after Taylor v Caldwell that the new
doctrine of discharge did apply to charterparties.239 Indeed, it was in charterparty
cases that important developments of the doctrine of discharge took place in the
early part of the twentieth century.240 One of the older cases referred to above was,
indeed, cited with approval by Blackburn J. five years after Taylor v Caldwell,241
but the case has been judicially doubted242 and is now generally doubted by
textwriters,243 even though it has not been specifically overruled. The same is
true of a number of other charterparty cases which, before Taylor v Caldwell,
had applied the doctrine of absolute contracts.244 The one rule from the old char-
terparty cases which clearly has survived is that a party who undertakes to provide
a cargo is strictly liable for failure to do so.245 This rule appears to have originated
in cases of antecedent impossibility,246 where strict liability is arguably more
appropriate247 than it would be in cases of supervening impossibility. The possi-
bility that the obligation to provide a cargo (though it has been described as
“absolute”248) may be excused by supervening events is therefore not wholly to be
ruled out.
(b) Survivals based on the reasoning of Paradine v Jane
2–033 More significant than possible historical survivals of the doctrine of absolute
contracts are those cases in which the reasoning of Paradine v Jane can still
appropriately be applied today, even though they may arise from situations to
which that reasoning had not been applied before Taylor v Caldwell. The reasoning,
it will be recalled, was that, “notwithstanding any accident by inevitable neces-
sity”, a party was bound by a duty created by his own contract “because he might
have provided against it by his contract”.249 Subject to one significant emendation

239 e.g. in Jackson v Union Marine Insurance Co Ltd (1874) L.R. 10 C.P. 125.
240 e.g. in Tamplin SS Co Ltd v Anglo-Mexican Petroleum Co Ltd [1916] 2 A.C. 397;
Scottish Navigation Co Ltd v Souter [1917] 1 K.B. 222; Bank Line Ltd v Arthur Capel
& Co [1919] A.C. 435; Hirji Mulji v Cheong Yue SS Co Ltd [1926] A.C. 497.
241 Barker v Hodgson, above, n.235 cited in Ford v Cotesworth (1868) L.R. 4 Q.B. 127 at
134.
242 Ralli Bros v Companˉ ia Naviera Sota y Asznar [1920] 2 K.B. 287 at 291, 296, 297 and
300.
243
Barker v Hodgson, above, is disapproved in Scrutton on Charterparties (22nd ed.),
p.315, n.123; Carver, Carriage by Sea (13th ed.), paras 986–988, 1034 (but see ibid.
paras 796 and 1822, n.47); Dicey and Morris on the Conflict of Laws (11th ed.), p.1225,
n.86 (the case is no longer cited in later editions of this work).
244
Bligh v Page, above, n.235 and Sjoerds v Luscombe, above, n.236, doubted in Scrutton,
op. cit. at 315, n.123 and in the Ralli Bros case, at 291–292, 301–303; Hadley v Clarke
(1799) 8 T.R. 259 (doubted in Metropolitan Water Board v Dick, Kerr & Co [1918]
A.C. 119 at 127).
245
Hills v Sughrue, above, n.237; Soc Financiera, etc. v Agrimpex, etc. (The Aello) [1961]
A.C. 135 (overruled, but on another point, in E L Oldendorff & Co GmbH v Tradax
Export SA (The Johanna Oldendorff) [1974] A.C. 479).
246
Hills v Sughrue, above, n.245, appears to have been such a case and follows Bute v
Thompson (1844) 13 M. & W. 487 where antecedent impossibility was held not be a
defence to an action for minimum rent under a mining lease.
247
See above, para.1–007.
248
Hills v Sughrue (1846) 15 M. & W. 253 at 261.
249
(1674) Aleyn 26 at 27 (italics supplied).

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(to be noted below) there are situations in which this reasoning still retains its
force today. The point has been well put in an American case by Learned Hand J.:
“No doubt we have gone a long way since Paradine v Jane . . . but a promise still
involves risks that the promisor may find it burdensome or even impossible to
meet . . . Its very purpose is to give assurance to the promisee against hazards of
the future.”250
One group of cases concerns antecedent impossibility. In one English case251 of
this kind, the reasoning of Paradine v Jane was approved after Taylor v Caldwell,
though on the facts that reasoning did not apply as, on the true construction
of the contract, no undertaking to do what turned out to be impossible (namely to
extract from land, which was the subject of a mining lease, more clay than the
land contained) had been given. More directly in point are American cases
concerning building contracts. These will be more fully considered in Ch.3.252
Here it is necessary only to say that they were cases in which contractors
claimed to be discharged from their obligations to erect buildings on specified
sites when the buildings collapsed (sometimes repeatedly)253 because the sites
were incapable of sustaining their weight. In rejecting such claims, the courts
relied254 on the reasoning of Paradine v Jane; and this reasoning continues to
have greater force in such cases of antecedent impossibility than it normally does
in cases of supervening impossibility. The reason for this distinction has already
been given: it is, in general, easier to discover present facts than to foresee the
future.255 The contractor in these cases could (and arguably should) have investi-
gated the site before entering into the contract: in this sense, it can be said that
he had the opportunity of providing by his contract against the difficulty which he
encountered. If he fails to make any such provision, the contract is more likely
(than in cases of unexpected supervening obstacles to performance) to be
construed as one by which he undertook responsibility for the difficulties which
have arisen from the antecedent state of the site. For this reason, too, the contractor
is unlikely to be able to claim relief on the ground of mistake.256
A second group of cases concerns the liability of sellers who are prevented by the 2–034
occurrence of a supervening event (or by the non-occurrence of such an event where
it was expected to occur) from performing their obligation to ship goods as required
by the contract. One such case is Ashmore & Son Ltd v CS Cox & Co,257 where
Manila hemp had been sold on the terms that shipment was to be made “from a port

250
Companhia de Navegaceo Lloyd Brasileiro v CC Blake, 34 F. 2d 616 at 619 (1929).
251
Clifford v Watts (1870) L.R. 5 C.P. 577 at 586.
252
See below, paras 3–058 to 3–060.
253
See Stees v Leonnard, 20 Minn. 455 (1874), below, para.3–058.
254
See the citation in Stees v Leonnard, above, of School District v Bennet 3 Dutcher 513,
518 (1859).
255
See above, para.1–007.
256
Watkins v Carrig, 21 A. 591 (1941), so far as it concerns the validity of the original
contract; contrast Kinzer Construction Co v Stat, 125 N.Y.S. 46 (1910) where the
contractor recovered on a quantum meruit basis in respect of work done under a contract
the full performance of which was “impossible” by reason of antecedent obstacles; see
further below, para.3–060.
257
[1899] 1 Q.B. 436; cf. also the discussion of Jacobs v Crédit Lyonnais (1884) 12 Q.B.D.
589 below, para.12–025.

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or ports in the Philippine Islands between May 1 and July 31, 1898 . . .”. The sellers
were unable to make such a shipment on account of the Spanish–American war and
were held to be in breach on the ground that their undertaking to ship was an “abso-
lute” one.258 An alternative explanation of the case is that there was evidence of the
availability of a shipment of the contract description, which the sellers could have
acquired afloat.259 But it is interesting to note that counsel for the buyer relied on
Paradine v Jane while counsel for the seller relied on Taylor v Caldwell; and that it
was nevertheless the buyer who prevailed. Another such case is Lewis Emanuel &
Son Ltd v Sammut260 where a contract was made for the sale of potatoes to be
shipped from Malta between April 14 and 24. During that period, no ship capable
of taking the potatoes on board left Malta, so that it was impossible for the seller to
ship them during the contractual shipment period. He was nevertheless held liable
in damages, on the ground that: “The seller, being on an island, must make sure that
shipping space is available before he commits himself to an absolute contract.”261
That is language reminiscent of Paradine v Jane, and one can explain it on the
ground that, in such export contracts, it is common for the seller to safeguard
himself by means of a clause which qualifies his obligation, e.g. by making it
“subject to shipment”. In other words, the reasoning of Paradine v Jane still has
force where the position is not merely that the party “might have provided
against [the event] by his contract”,262 but where it is reasonable to expect him to do
so. The trouble with the doctrine of absolute contracts was that it applied to both
these situations; and, where it was not reasonable to expect a party to provide for the
event, the doctrine came to be regarded as an unsatisfactory way of allocating the
loss resulting from the event, and therefore to be superseded by the doctrine of
discharge.
There is, finally, the possibility that a contract may in terms provide that
obligations imposed by it are “absolute and unconditional irrespective of any
contingency whatever . . .”263; and where a contract contained these words this
was one reason for the conclusion that the contract had not been frustrated by
events interfering with the performance of such obligations.264

258
[1899] 1 Q.B. at ibid.; cf. Lee Chee Wei v Tan Hor Peow Victor [2007] SGCA 22 at [48],
where the reference to “an absolute and unconditional obligation” appears, however, to
be based on the fact that the contract expressly provided for what was to happen in the
circumstances alleged to have given rise to frustration: see at [46] and below,
para.12–002.
259
[1899] 1 Q.B. at 440; Benjamin’s Sale of Goods (8th ed.), para.19–132; and see below,
para.4–047.
260
[1959] 2 Lloyd’s Rep. 629.
261
ibid. at 642.
262
(1647) Aleyn 26 at 27 (italics supplied).
263
Words taken from clause 5.14 of the contract in ACG Acquisition XX LLC v Olympic
Airlines SA [2012] EWHC 1070 (Comm); [2012] C.L.C. 48; the clause is set out at
[110] of the report.
264
See ibid at [181]; other reasons for rejecting the argument that the contract had been
frustrated are discussed in para.8–022 below. The decision was affirmed sub nom.
Olympic Airlines S A v ACG Acquisitions XX LLC [2013] EWCA Civ 369; [2013] 1
Lloyd’s Rep. 658, without further discussion of the issue of frustration.

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 TRENDS A FFECTING THE D EVELOPMENT OF THE D OCTRINE 2–036

IV. TRENDS A FFECTING THE D EVELOPMENT OF THE D OCTRINE

In discussing the judgment in Taylor v Caldwell,265 we saw that Blackburn J. there 2–035
formulated the doctrine of discharge in a way which facilitated its development
and expansion266; and in the years following that case the doctrine entered into an
initial period of growth. It was extended in the first place to various groups of
cases in which performance had indeed become impossible, but had done so
otherwise than by reason of the perishing of a “given person or thing”267: e.g. to
cases where a thing necessary for the performance of the contract was perma-
nently or temporarily requisitioned,268 or in some other way became temporarily
unavailable for the purpose of performance,269 or where the impossibility affected
only the method of performance,270 or where the subject-matter was not a specific
thing, but was one to be taken from an identified source which failed.271 An even
more striking extension of the doctrine was made in cases in which the super-
vening event had not made performance by either party impossible at all but can
be said to have frustrated the purpose of the contract. This was the position in the
coronation cases to be discussed in Ch.7 below.272 In a number of these cases,
contracts had been made for the hire of rooms or seats overlooking the routes of
the processions planned for the coronation of King Edward VII; and such contracts
were held to have been discharged when the coronation was postponed on account
of the illness of the King. In the leading case of Krell v Henry273 this was held to
be the position even though the contract contained no express reference to the
coronation.274 Performance was not physically or literally impossible: the rooms
were available for use by the hirer on the days in question, and of course it was not
impossible for him to pay the agreed fee. But it was held that the doctrine of
discharge was not restricted to cases where the supervening event made perform-
ance physically impossible: it also applied “to cases where the event which
renders the contract incapable of performance is the cessation or non-existence of
an express condition or state of things going to the root of the contract and essen-
tial to its performance”.275
This extension of the doctrine of discharge did not escape criticism since it 2–036
could, if misapplied, lead to the situation in which a party would be entitled to
relief merely because a supervening change of circumstances had turned the
contract, for that party, into a very bad bargain.276 But these criticisms have not
prevailed and the doctrine of discharge is now generally thought to have been

265
(1863) 3 B. & S. 826; above, para.2–024.
266
See above, para.2–025.
267
(1863) 3 B. & S. 826 at 839.
268
e.g. Re Shipton, Anderson & Co [1915] 3 K.B. 676; Bank Line Ltd v Arthur Capel
[1919] A.C. 435.
269
e.g. Jackson v Union Marine Insurance Co Ltd (1874) L.R. 10 C.P. 125.
270
e.g. Nickoll & Knight v Ashton Edridge & Co [1901] 2 K.B. 126.
271
e.g. Howell v Coupland (1876) 1 Q.B.D. 258.
272
See below, paras 7–006 to 7–014.
273
[1903] 2 K.B. 740; see further para.7–010, below.
274
In this respect, Krell v Henry is unique among the coronation seat cases: see below,
para.7–010.
275
[1903] 2 K.B. 740 at 748.
276
See below, para.7–011.

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 2–036 C HAPTER 2—D EVELOPMENT

correctly applied to coronation cases such as Krell v Henry277; for it can fairly be
said that the hirer in that case would have suffered unacceptable hardship if he had
been held to his contract in the altered circumstances. But English cases provide
few other illustrations of discharge on the ground of frustration of purpose,278 and
they seem not to have adopted the converse notion of discharge on the ground of
“impracticability”,279 i.e. on the ground that supervening events have made
performance more expensive or otherwise more onerous for the party claiming
discharge. Thus in the British Movietonenews and Davis Contractors cases280 (to
be further discussed in Ch.6) pleas of discharge on such grounds were rejected;
and a number of dicta in the House of Lords similarly adopt a restricted approach
to the doctrine. In this vein it has, for example, been said that “an increase of
expense is not a ground of frustration”,281 that the doctrine of frustration was only
to be applied “within very narrow limits”,282 that “it by no means follows that
disappointed expectations lead to frustrated contracts”,283 and that the doctrine
was “not lightly to be invoked to relieve contracting parties of the normal conse-
quences of imprudent commercial bargains”.284
2–037 At first sight, a less strict approach to the doctrine may seem to have been taken
by Lord Hailsham L.C. in the National Carriers case, where he described as
“untenable” the “proposition that the doctrine was not to be extended”.285 But the
purpose of this observation was to make the point that the doctrine could apply to
contracts generally: thus suggestions that it did not apply to particular types of
contracts, such as time charters or demise charters, or leases of land, have from
time to time been rejected by the courts.286 The actual decision in the National
Carriers case was that events which temporarily prevented a tenant of a warehouse
from putting it to its intended use were not sufficiently serious to discharge the
contract. In this respect the case, so far from departing from, actually illustrates,
the view that the doctrine of discharge is “not lightly to be invoked”.

277 See below, para.7–011 at n.86.

278 See below, para. 7–035.
279 See below, para.6–021.
280 [1952] A.C. 166; [1956] A.C. 696.
281 Tsakiroglou & Co Ltd v Noblee Thorl GmbH [1962] A.C. 93 at 115.
282 ibid.; Gold Group Properties Limited v BDW Trading Limited [2010] EWHC 323
(TCC); [2010] B.L.R. 323 at [68]; Lee Chee Wei v Tan Hor Peow Victor [2007] SGCA
22 at [48]; Bunge SA v Kyla Shipping Co (The Kyla) [2012] EWHC 35322 (Comm);
[2013] 1 Lloyd’s Rep. 565 at [39]; leave to appeal refused [2013] EWCA Civ 734;
[2013] 2 All E.R. (Comm) 577. cf. the phrase “the narrow doctrine of frustration” in the
dictum from Walton v Walton (unrep., April 14, 1994) cited in Thorner v Major [2009]
UKHL 18; [2009] 1 W.L.R. 776 at [57] and in para.2–038 below at n.1e.
283
Davis Contractors Ltd v Fareham UDC [1956] A.C. 696 at 715.
284
Pioneer Shipping v BTP Tioxide (The Nema) [1982] A.C. 724 at 752; cf. Atisa SA v
Aztec AG [1983] 1 Lloyd’s Rep. 579 at 584; J Lauritzen A/S v Wijsmuller BV (The Super
Servant Two) [1990] 1 Lloyd’s Rep. 1 at 8; Edwinton Commercial Corporation v
Tsavliris Russ (Worldwide Salvage and Towage) Ltd (The Sea Angel) [2007] EWCA Civ
547; [2007] 2 All E.R. (Comm) 634 at [111].
285
National Carriers Ltd v Panalpina (Northern) Ltd [1981] A.C. 675 at 689; cf. ibid. at
694, 712.
286
Bank Line Ltd v Arthur Capel & Co [1919] A.C. 435 (time charters); Blane Steamships
Ltd v Minister of Transport [1951] 2 K.B. 965 (demise charters); National Carriers Ltd
v Panalpina (Northern) Ltd [1981] A.C. 675 (leases of land).

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This approach to the doctrine of discharge reflects the importance which the
English courts have come, in the interests of commercial certainty, to attach to the
principle of sanctity of contract. It can fairly be described as a trend to restrict
the operation of the doctrine after its initial period of growth; and in English law
the trend is illustrated by an increasing amount of negative evidence. The First
World War did indeed give rise to a significant number of cases287 in which
contracts were held to have been discharged by supervening impossibility. By
contrast, there were hardly any reported288 Second World War cases in which
contracts were held to have been discharged by supervening impossibility, as
opposed to supervening illegality.289 The Suez crisis of 1956 led to severe
commercial disruption, but it produced only two reported cases in which frustra-
tion was successfully pleaded. Both these cases were later overruled.290 When the
Suez Canal was again closed in 1967, pleas of frustration met with no more
success291; and the “energy crisis” resulting from further hostilities in the Middle
East in 1973 did not lead to any reported cases in England in which frustration
was even raised as a defence.292 All this is not to say that the doctrine of discharge
may not be applied where performance is actually prevented; it was, for example,
applied in a number of cases in which shipowners were prevented from rendering
the agreed services under time charters because their ships were trapped in port
for long periods after the outbreak of hostilities in 1980 between Iran and Iraq.293

287 Especially charterparty cases such as Scottish Navigation Co Ltd v WA Souter & Co
[1917] 1 K.B. 222 and Bank Line Ltd v Arthur Capel & Co [1919] A.C. 435, discussing
earlier authorities; cf. sale of goods cases such as Acetylene Co of GB v Canada Carbide
Co (1922) 8 Lloyd’s Rep. 456. See also Report of the Committee appointed by the
Board of Trade to consider the position of British Manufacturers and Merchants in
respect of Pre-War Contracts, Cd. 8975 (1918).
288 There were some: e.g. Morgan v Manser [1948] 1 K.B. 184.
289 In three leading Second World War cases, the alleged ground of frustration was super-
vening illegality: they were the Fibrosa case (Fibrosa Spolka Akcyjna v Fairbairn
Lawson Combe Barbour Limited) [1943] A.C. 32 and the Denny Mott case (Denny, Mott
& Dickson Limited v James B Fraser & Company Limited) [1944] A.C. 265 (below,
paras 8–005, 7–021) in which the contracts were held to be frustrated, and the Cricklewood
case (Cricklewood Property and Investment Trust v Leighton’s Investment Trust Limited)
[1945] A.C. 221 (below, para.11–015) in which the plea of frustration failed.
290 Carapanayoti & Co Ltd v ET Green Ltd [1959] 1 Q.B. 131; overruled in the Tsakiroglou
case [1962] A.C. 93; and Soc Tunisiene d’Armement v Sidermar SpA (The Massalia)
[1961] 2 Q.B. 278; overruled in Ocean Tramp Tankers Corp v V/O Sovfracht (The
Eugenia) [1964] 2 Q.B. 226.
291 For the Suez cases, see further, paras 4–074 to 4–086, below.
292 See below, para.6–024. In a number of American cases, it was argued (generally without
success) that the contracts were discharged by these events on the ground of “impractica-
bility”: below, paras 6–009 to 6–016 for an exceptional case giving relief on this ground,
see Aluminum Corp of America v Essex Group Inc, 499 F. Supp. 53 (1980), below, para.6–
018. In Florida Power & Light Company v Westinghouse Electric Corporation, 826 F. 2d.
239 (1987) relief was granted on account of a combination of impossibility in the contem-
plated method of performance and “impracticability”: see below, paras 4–064 and 6–035.
293 Kodros Shipping Corp v Empresa Cubana de Fletes (The Evia) (No2) [1982] 1 A.C.
736; Kissavos Shipping Co v Empresa Cubana de Fletes (The Agathon) [1982] 2
Lloyd’s Rep. 211; International Sea Tankers Inc v Hemisphere Shipping Co Ltd (The
Wenjiang) (No 2) [1983] 1 Lloyd’s Rep. 400; Vinava Shipping Co Ltd v Finelvet AG
(The Chrysalis) [1983] 1 Lloyd’s Rep. 503.

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In the Suez cases there was (with one exception294) no such prevention: perform-
ance had merely become more onerous for the party alleging frustration. There is
now a marked judicial reluctance to apply the doctrine in such circumstances.
2–038 It has been suggested in para.2–037 above that this reluctance is primarily
based on the importance now attached to the principle of sanctity of contract. At a
more practical level, it is further supported by two related points. The first is the
tendency of contracting parties to “draft out” possible causes of frustration by
making express provisions either for specific obstacles to performance, or for
such obstacles in general: e.g. in “Suez clauses”295 which began to make their
appearance after the first Suez crisis, and in the force majeure and similar clauses
to be discussed in Ch.12. The second is the point, already noted in connection
with Taylor v Caldwell, that total discharge of the contract may not be a satisfac-
tory way of allocating the loss which results from the supervening event.296 Often
it may be more reasonable to adopt some compromise solution: for example, in
some of the coronation seat cases the contracts provided that, if the procession
were cancelled, the ticket-holder should be entitled to use the ticket on the day
when the procession eventually did take place297; the Suez clauses mentioned
above specified (sometimes in considerable detail) which party was to bear any
extra expense which might be incurred, should the Canal again be closed298; and
“force majeure” clauses may provide that, in cases of temporary impossibility,
performance is to be postponed, at least for a limited time, at the end of which
discharge may follow if the impossibility persists.299 A contract could also by
express provisions vary the normal consequences of discharge: this possibility is
illustrated by another of the coronation cases in which the contract provided that,
if the procession were cancelled, the ticket-holder should get his money back, less
a percentage to cover the other party’s expenses.300 In the absence of such express
provisions, the English courts had no power to modify the contract; nor was there
in English law any half-way house between holding that the contract was totally
and automatically discharged (if the supervening event was sufficiently drastic for
this purpose) and that it remained in full force (if the event was not of this
character).301 Certain powers to make adjustments in respect of expenses incurred
for the purpose of performance and in respect of benefits conferred by part
performance before discharge do now exist by statute,302 but these powers have a

294
i.e. The Eugenia [1964] 2 Q.B. 226 (above n.290); but there the fact that the ship was
trapped in the Canal did not lead to frustration as it was due to the charterer’s prior
breach of the contract: see below para.14–023.
295
Below, n.298.
296
See above, para.2–028.
297
For contracts containing such provisions, see Clark v Lindsay (1903) 19 T.L.R. 202 and
Victoria Seats Agency v Paget (1902) 19 T.L.R. 16 (first contract).
298
Achille Laura v Total Societa Italiana per Azioni [1969] 2 Lloyd’s Rep. 65; DI Henry
Ltd v Wilhelm V Clasen [1973] 1 Lloyd’s Rep. 159.
299
e.g. GAFTA From 100 cl.22, discussed in Bremer Handelsgesellschaft mbH v Vanden
Avenne-Izegem PVBA [1978] 2 Lloyd’s Rep. 109, below, para.12–034.
300
Victoria Seats Agency v Paget (1902) 19 T.L.R. 16 (second contract); cf. Elliott v
Crutchley [1903] 2 K.B. 476, [1904] 1 K.B. 565, [1906] A.C. 7 (below, para.15–073).
301
See below, para.15–041.
302
Law Reform (Frustrated Contracts) Act 1943, s.1(2) proviso and s.1(3); below, paras
15–075, 15–077.

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limited scope. The desire of contracting parties to provide for compromise solu-
tions where supervening events disrupt performance has thus given a further
impetus to the process of making express contractual provisions for such events,
and this process has tended further to narrow the scope of the doctrine of frustra-
tion since that doctrine is excluded where the parties have expressly provided
for the effects on their contract of the event which has interfered with its
performance.303
Since the purpose of the judicial trend to restrict the doctrine of frustration304 2–039
is to protect the principle of sanctity of contract, that trend does not extend to
situations in which the law gives some legal effects to promises in spite of the fact
that they have no contractual force. This is, for example, the position where the
nature of such a promise, and the promisee’s conduct in reliance on it, gives rise
to a proprietary estoppel in favour of the promisee.305 The distinction between this
situation and that in which a promise does not have contractual force was explained
by Hoffmann L.J. in the unreported case of Walton v Walton.306 Having there (in
a passage later cited with approval in the House of Lords)307 said that “[a] contract,
subject to the narrow doctrine of frustration, must be performed come what
may”,308 he went on to contrast this position with that in which a promise gives
rise to what has become known as proprietary estoppel, which “looks backward
from the moment when the promise falls due to be performed and asks whether,
in the circumstances which have actually happened, it would be unconscionable
for the promise not to be kept”.309 The existence, as well as the extent (one way or
another), of the remedy for proprietary estoppel may therefore well be affected by
changes of circumstances. It is, indeed, inherent in the nature of the doctrine of
proprietary estoppel that events after the making of the promise are taken into
account, for it is not the promise alone that gives rise to such an estoppel: the
promisee must also have relied on the promise to his detriment.310 But events
which occur even after such reliance, or, in other words, after the totality of the
facts which give rise to the estoppel, are also quite commonly taken into account
in fashioning the remedy, or in deciding whether any remedy at all is available.311
For example, the court can take into account “changes in the character or extent
of the property in question”312; or a disposal or part disposal of it by the promisor
as “a source of funding for [his] needs in a decrepit old age”313; or by the fact that,
by acting in reliance on the promise, the promisee has not only suffered detriment
but also gained benefits;314 or that, in addition to the fact just mentioned, the rela-
tive financial positions of the parties has changed, so that greater hardship would

303
See below, para.12–001.
304
Above, para.2–036.
305
For this aspect of proprietary estoppel, see Chitty on Contracts (31st ed.), Ch.3, Section
11.
306
April 14, 1994.
307
Thorner v Major [2009] UKHL 18; [2009] 1 W.L.R. 776 at [57], [62], [101].
308
At (apparently) [20].
309
At (apparently) [21].
310
Chitty (above, n.1b) para.3–156.
311
Chitty, para.3–178.
312
Thorner v Major [2009] UKHL 18 at [9], [62], [91], [95].
313
ibid., at [19].
314
Henry v Henry [2010] UKPC3; [2010] 1 All E.R. 988.

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be produced by giving effect to the promise than by allowing the promisor to go

back on it315; or that the promisor had, after the occurrence of the facts giving rise
to the estoppel, acted in relation to the promise with “high-handedness”316 or
“ruthlessness”.317 These examples suffice (without purporting to be exhaustive) to
show that, where a claim is based on such an estoppel, there is nothing unusual or
exceptional in taking account of events which have occurred after the facts which
have given rise to the proprietary estoppel in fashioning the remedy, or even in
deciding whether any remedy is to be available. In the present context, it must be
emphasised that the “promise”318 which is one of the constituent elements of
proprietary estoppel is one which is assumed to have no contractual force319 for,
if it had such force, there would be no need to invoke the estoppel. Hence the
tension between the two principles stated in para.1–001 of this book does not
arise; and the taking into account of supervening events in fashioning the remedy
does not pose any threat (as in cases of alleged frustration it well might) to the
sanctity of contract.

V. D ISCHARGE OF BOTH P ARTIES

2–040 In discussing Taylor v Caldwell we saw that Blackburn J. concluded that “both
parties are excused”320; that this statement was not directly supported by the
particular examples from which Blackburn J. derived his general principle321; and
that the statement was not strictly necessary for the actual decision of the case, in
which the court was concerned only with the liability of the defendants: their
obligation to supply the Music Hall could not be performed because of the fire,
but that event clearly did not make it impossible for the plaintiffs to perform their
principal obligation to make the agreed payments. It is more doubtful whether it
prevented the plaintiffs from performing their other obligation, namely to engage
the artistes for the concerts, and whether indeed the plaintiffs were under any
obligation to hold the concerts at all. On a literal reading of the contract, they had
a right, but not a duty, to give the concerts; though it is arguable that an obligation
to give them might have been implied if the defendants had a financial interest in
the giving of the concerts (it is not entirely clear whether the plaintiffs’ rights to
box-office receipts extended to all, or only to some, such receipts). The contract
in Taylor v Caldwell was, in any event, a somewhat unusual one: it was a kind of
joint enterprise in which, though one party undertook to make a payment of
money, each of them also undertook to render a performance other than the
payment of money. The more usual bilateral contract consists of an exchange of

315 Sledmore v Dalby (1996) 72 P. & C.R. 196 (where by the time of the claim the promisee
was gainfully employed while the promisor was a widow living on social security
benefits).
316 Crabb v Arun D C [1976] Ch. 179 at 199.
317 Pascoe v Turner [1979] 1 W.L.R. 431 at 439.
318 Above, at n.1f.
319
Chitty, (above, n.1b) para.3–183.
320
(1863) 3 B. & S. 823 at 840, above, para.2–022; cf. Horlock v Beal [1916] 1 A.C. 486
at 525.
321
See above, para.2–022.

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promises whereby one party (A) promises to provide a thing or a service and the
other (B) to pay for it in money. Where the contract is of this kind, supervening
events may make it impossible for A to perform his promise, but performance of
B’s promise, being simply one to pay money, cannot in law become impossible
(though it may become illegal).322 Blackburn J. does not explain why an event
which makes it impossible for only one party to perform his promise nevertheless
discharges both parties.
In England, this conclusion was, indeed, not immediately accepted, even
after Taylor v Caldwell. One type of case in which it was doubted concerned time
charters. Under such a contract, the shipowner undertakes to render services for a
specified or ascertainable time by making his ship available to the charterer who
in return undertakes to make periodic payments of hire. There was at one time
some support for the view that the detention or requisition of the ship did not
discharge the charterer: he could still pay the agreed hire, and what use he made
of the ship was of no concern to the shipowner.323 But in two early twentieth-
century cases324 Lord Sumner rejected this argument and held that the detention
or requisition of the ship could discharge both parties to a time charter. His expla-
nation for this result was that: “It is [the parties’] common object which is frus-
trated, not merely the individual advantage which one party or the other might
have gained from the contract. If so, what the law provides must be a common
relief from this common disappointment and an immediate termination of the
obligation as regards future performance.”325
This reasoning has been criticised in other common law jurisdictions. Thus 2–041
in Australia Latham C.J. has said326: “There is some difficulty in specifying
the ‘common object’ of the parties to a contract . . . contracting parties are not

322
See Libyan Arab Foreign Bank v Bankers Trust Co [1989] Q.B. 728 at 749, recognising
that “an obligation to pay money can be frustrated” by illegality.
323
Scottish Navigation Co Ltd v Souter [1916] 1 K.B. 675 at 681; cf. Admiral Shipping Co
Ltd v Weidner Hopkins & Co [1916] 1 K.B. 429 at 437; this statement may be explicable
on the narrower ground that in this charter there was in fact “no object in common
contemplation”. Both decisions were reversed on appeal, sub nom. Scottish Navigation
Co Ltd v Souter [1917] 1 K.B. 222, where it was stressed that the contracts were not
ordinary time charters but charters for “one Baltic round” (which could not be accom-
plished on account of the outbreak of the First World War). The argument that “the
adventure on the part of the owners of the ship was that she should earn freight” had
earlier been used even in a voyage charter case: see Hudson v Hill (1874) 43 L.J.C.P.
273 at 279, though it had been clear ever since Jackson v Union Marine Insurance Co
Ltd (1874) L.R. 10 C.P. 125 (below, para.5–039) that such a charter could be frustrated.
In Tamplin SS Co v Anglo-Mexican Petroleum Co Ltd [1916] 2 A.C. 397 at 424–425
Lord Parker also seems to take the view that time charters cannot be frustrated by requi-
sition of the ship. For similar views expressed in the Court of Appeal in that case, see
[1916] 1 K.B. 485 at 494.
324 Bank Line Ltd v Arthur Capel & Co [1919] A.C. 435; Hirji Mulji v Cheong Yue SS Co
[1926] A.C. 497. The same view had been taken by the Court of Appeal in Countess of
Warwick SS Co v Le Nickel SA [1918] 1 K.B. 372; cf. also Scottish Navigation Co Ltd v
Souter [1917] 1 K.B. 222 at 237.
325
Hirji Mulji case, above, n.324, at 507. Contrast Brown v Turner Brightman & Co [1912]
A.C. 12 (performance of time charter not “prevented” or “hindered” within a “strikes”
clause by charterer’s inability, as a result of a strike, to secure a cargo).
326
Scanlan’s New Neon Ltd v Tooheys Ltd (1943) 67 C.L.R. 169 at 197.

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partners. They are engaged in a common venture only in a popular sense.” In a

contract for the sale of goods, “the acquisition of the goods is no more and no less
a common object than the receipt of the price”. The idea of a “common object”
came from the “peculiar characteristics” of charterparty cases. Presumably, one
such characteristic is that each party has to do some act other than to pay cash.
Such “peculiar characteristics” are by no means confined to charterparties: another
illustration of them is (as already noted) provided by Taylor v Caldwell itself,
where the plaintiffs undertook to “find and provide, at their own sole cost, all
the necessary artistes for the . . . concerts”327 as well as to pay the specified “rent”
or “sum”.
In the United States, a point similar to Latham C.J.’s has been made by Corbin:
“each of the two parties to a contract has an object or purpose for which he joins
the transaction. These purposes are not identical . . . There is no ‘purpose of
the contract’; instead there are the purposes of the parties to the contract.”328
Thus in a case like Taylor v Caldwell, the plaintiffs’ purpose was to get the use of
the Music Hall (leaving the side shows out of account); while the purpose of the
defendants was to get the £100 per night (again leaving out of account the possible
benefit to them of the increased number of visitors which the grand concerts might
attract to the Gardens). Critics of the “common object” theory do not, however,
deny that both parties are discharged and two explanations for this conclusion
have been put forward in the United States.
2–042 One, given by Corbin,329 is that in a case such as Taylor v Caldwell the defend-
ants are discharged by impossibility, while the plaintiffs are discharged because
their purpose in entering into the contract (i.e. to secure the use of the Hall) is
frustrated. This is an unusual use of the notion of “frustration of purpose”, which
normally refers to cases in which there is no impossibility on either side330 (as in
the coronation cases, to be discussed in Ch.7). Corbin recognises this when he
says that in those cases it is the “further and ultimate purpose” of the parties which
is frustrated. In view of the multiplicity of senses in which the expression “frustra-
tion” is already used,331 Corbin’s use of the phrase “frustration of purpose” in the
two senses just described (i.e. relating to an immediate and to an ultimate purpose)
scarcely promotes clarity, and no further use of the first of these senses, which he
gave to the phrase in explaining Taylor v Caldwell, will be made in this book. This
sense also seems to be an unnecessary one, for it does not seem to add anything of
substance to the second explanation for the discharge of both parties (to be
discussed below) which has been given in the United States.
This second explanation is that, in a case like Taylor v Caldwell, the defendants
were discharged by supervening impossibility, while the plaintiffs were discharged
by what used to be (and sometimes still is) called “failure of consideration”, a
misleading expression for which the Restatement 2d332 substitutes the more

327 (1863) 3 B. & S. 826 at 830.

328 Contracts, para.1322. For similar reasoning in an English charterparty case (in which
the actual decision turned on the direction to the jury on another point) see Hudson v
Hill (1874) 43 L.J.C.P. 273 at 279, quoted in para.2–040 n.323, above.
329
Corbin, Contracts, para.1332.
330
See below, paras 7–001, 7–011.
331
See below, paras 2–045 to 2–051.
332
§ 237.

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informative phrase “failure in performance”. This view has considerable support

in the United States333 and is adopted by §261 of the Restatement 2d which
provides that “where, after a contract is made, a party’s performance is made
impracticable without his fault by the occurrence of an event, the non-occurrence
of which was a basic assumption on which the contract was made, his duty to
render that performance is discharged” (emphasis added). To find out how the
other party’s duty is affected, we have to look at other provisions of the Restatement
2d. The starting point is the Introductory Note to Ch.11334; “The obligor [i.e. the
plaintiff in Taylor v Caldwell] may claim that he will not receive the agreed
exchange [i.e. the use of the Music Hall] for his own performance [i.e. the payments
of £100 per night] because some circumstance [i.e. the destruction of the Music
Hall] has discharged the obligee’s [i.e. the defendant’s] duty to render the agreed
exchange on the ground of impracticability. . . .” The principle which discharged
the plaintiffs in Taylor v Caldwell, is then stated in § 237 (to which we are referred
in Ch.11 by § 267): “. . . it is a condition of each party’s remaining duty to render
performances under an exchange of promises that there be no uncured material
failure by the other party to render any such performance at an earlier time” (and
where the performances were to be exchanged simultaneously, § 238 requires each
party either to render or to show that he is able to render performance as part of the
simultaneous exchange). The important point is that § 237 refers to failure in
performance: not to breach. It therefore excuses the plaintiffs in Taylor v Caldwell,
even though the defendants are discharged by the destruction of the Music Hall
and so are not in breach. Again both parties are discharged, but the Restatement’s
explanation for this result differs from that given in England.
The Uniform Commercial Code manages to sit on both sides of this conceptual 2–043
fence. Section 2–615(a) follows what may be called the American conceptual
structure, which has just been outlined. It merely provides that “Delay in delivery
or non-delivery . . . by a seller . . . is not a breach of his duty under a contract of
sale if performance as agreed has been made impracticable by the occurrence of a
contingency the non-occurrence of which was a basic assumption on which the
contract was made” (emphasis added). In cases of non-delivery, the buyer is
excused simply because the goods have not been delivered (s.2–507(1)): not
because of the impracticability which prevents the seller from delivering; and in
cases of delay in delivery a similar result follows from the buyer’s right to reject
under the “perfect tender” rule of s.2–601 (a), which (as a general rule) entitles
him to reject “if the goods or the tender of delivery fail in any respect to conform
to the contract”. These last two provisions excuse the buyer where the super-
vening events make it impracticable for the seller to perform his duty to deliver.
Section 2–615 gives rise also to an entirely separate problem where those events
make it impracticable for the buyer to perform his duty to take delivery. Here
Comment 9 to s.2–615 suggests that the buyer may be able to rely on “the reason

333 See Corbin, paras 1320, 1322; Corbin (1947) 29 (3) J1 of Comp. Int. Law 7; Earn Line
SS Co v Sutherland SS Co Ltd, 254 F. 126 at 131 (1918); Kowal v Sportswear by Revere
Inc, 22 N.E. 2d 778 at 781 (1967) and see the citations from Restatement 2d in the text
below. Other American decisions however seem to adopt the English approach stated in
para.2–040 above at n.300, e.g. The Isle of Mull, 278 F. 131 (1921).
334
Restatement 2d, Vol.II, p.310.

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 2–043 C HAPTER 2—D EVELOPMENT

of” the section, i.e. on discharge by impracticability of his performance.335 The

present point is that the buyer may be discharged, (even though performance of
his own duty to pay is not impracticable at all) where the seller’s duty to deliver
is discharged by impracticability.
By contrast to s.2–615(a), s.2–613(a) seems to adopt the English conceptual
structure. It provides that, if goods identified when the contract is made are totally
destroyed before the risk of loss passes to the buyer, “the contract is avoided”.336
This closely resembles the corresponding phrase in s.7 of the Sale of Goods Act
1979 (“the agreement is avoided”). If s.2–613(a) had followed the conceptual
structure of s.2–615(a), one would have expected s.2–613(a) to say that failure by
the seller to deliver was not a breach of his duty under the contract. One could
then conclude that failure by the buyer to pay was not a breach of his duty either,
precisely because the loss had occurred before the risk had passed him.
2–044 Under the second of the two American views discussed above, the defence of the
party whose performance has not become impossible “is often described as failure
of consideration”.337 It is probable that this very terminology accounts for the fact
that this explanation of that party’s discharge is not now commonly338 found in
England; indeed in National Carriers Ltd v Panalpina (Northern) Ltd,339 the argu-
ment that such discharge was based on failure of consideration was specifically
rejected in the House of Lords. The reason for this rejection seems to lie in an old
terminological habit. The phrase “failure of consideration” is most commonly
found in English law in the context of a restitutionary claim, i.e. one by a party, who
had paid money for an agreed counter-performance, to recover back the money on
the ground that he has not received that counter-performance.340 In English law the
general rule, now much qualified,341 is that such a claim will only succeed if the
payor has not received any part of the agreed performance; or, as it is traditionally
put, he must show that there has been a “total failure of consideration”. The word
“total” is thus almost instinctively prefaced by English lawyers to the phrase

335
See below, para.4–062.
336
This phrase was also found in the American Uniform Sales Act, s.8; this Act is now
superseded by UCC, Art.2.
337
e.g. Corbin, Contracts, para.1320.
338 It is occasionally found in English cases: e.g. in Herne Bay Steamboat Co v Hutton
[1903] 2 K.B. 683 at 691; Grimsdick v Sweetman [1909] 2 K.B. 740 at 744; it may (for
the reason given at paras 7–014, 7–024, below) be significant that the alleged ground of
discharge in these cases was not impossibility but frustration of purpose, and that the
plea of discharge failed in both cases. A somewhat similar argument for the discharge
of both parties is used in Scottish Navigation Co Ltd v Souter & Co [1917] 1 K.B. 222
at 237. For an English work which uses “failure of consideration” reasoning in this
context, see McElroy and Williams, Impossibility of Performance, Part 2; cf. Williams,
The Law Reform (Frustrated Contracts) Act 1943, p.22.
339 [1981] A.C. 625 at 687, 702.
340 See Fibrosa Spolka Akcyjna v Fairbairn, Lawson Combe, Barbour Ltd [1943] A.C. 32.
341 See Goff and Jones, The Law of Unjust Enrichment (8th ed.), paras 12–024 to 12–031;
Treitel (13th ed.) para.22–003. Burrows, a Restatement of the English Law of Unjust
Enrichment, while recognising that “it has traditionally been thought to be a require-
ment, in relation to payments, that the failure of consideration must be total”, departs
from that view: see s.15(3) and the Commentary on that section at 88, relying on what,
in the text above are referred to as qualifications of the general rule.

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“failure of consideration”. Yet it is equally clear that a contract may be discharged

by supervening events in spite of the fact that they do not totally prevent perform-
ance.342 This was the position in Taylor v Caldwell343 itself, where the Music Hall
was destroyed but the Gardens (which formed part of the subject-matter of the
contract) remained available; and the contract was discharged because its main
purpose (the giving of the four grand concerts) could no longer be carried out. Thus
one reason why the “failure of consideration” explanation has not found favour in
the English courts is that, if the phrase were linked (as it usually has been) with the
word “total”, the explanation would unduly narrow the scope of the doctrine of
discharge. The rejection of the explanation is thus based in part on terminological,
rather than on logical grounds. But another, somewhat more satisfactory, reason
why there is so little support for the explanation in the English cases is that English
lawyers are reasonably well satisfied with Lord Sumner’s explanation, quoted
above,344 in which he refers to the “common object” of the parties. It may be
conceded that, in a contract for the sale of goods the buyer’s object is to get the
goods while the seller’s is to get the price. But it makes perfectly good sense, in the
case of most contracts, to say that the parties have a common object; and this is well
understood by both of them. Suppose that a person who has contracted to sell his
car for £5,000 were asked to say what he had contracted about. He would surely
reply, “I have sold my car”—not, “I have contracted to receive £5,000”. Similarly,
in the case of a time charter, Lord Sumner has said that the owner’s object was “not
only to get hire [i.e. the payment] but to afford services”.345 The “common object”
of the parties in such cases can be described as the exchange of the car for the price,
or of the services for the hire. Such a common object may be defeated by super-
vening impossibility resulting from such events as the destruction of the car346 or
the requisition of the ship or her prolonged detention347 without the fault of either
party. Contracting parties quite commonly have the same object in view, even
though they expect to benefit from it in different ways. This reasoning applies not
only in cases of supervening impossibility, but also in cases in which the contract is
discharged by frustration of purpose even though there was no impossibility. In
Krell v Henry,348 for example, the “common object” of the parties was the provision
of facilities for watching the coronation processions349: this was what one party had
to sell and the other wanted to buy. That common object was defeated even though
one party expected to benefit from it by receiving a sum of money and the other by
seeing the processions. Whenever such common objects are defeated, it makes

342 See below, para.5–002 (partial impossibility). A dictum in Modern Transport Co Ltd v
Duneric SS Co [1917] 1 K.B. 370 at 377 requiring “entire failure of consideration” in
cases of temporary impossibility is out of line with other cases on this topic discussed
below, para.5–054.
343 (1863) 3 B. & S. 823.
344 See above, para.2–040, at n.325.
345 Bank Line Ltd v Arthur Capel & Co [1919] A.C. 435 at 453.
346 e.g. under Sale of Goods Act 1979, s.7; it is assumed that the risk has not yet passed to
the buyer (below, para.3–014).
347 As in the Bank Line case, above, n.345, and above, para.2–037, n.293.
348
[1903] 2 K.B. 740; above, para.2–035, below, para.7–010.
349
cf. the description of the subject-matter in such cases as “a room with a view” in Great
Peace Shipping Ltd v Tsavliris Salvage (International) Ltd (The Great Peace) [2002]
EWCA Civ 1407; [2003] Q.B. 679 at [66].

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practical sense to say that performance of the contract has been frustrated. It follows
that both parties will be discharged even though the supervening event directly
affects only the performance to be rendered by one of them.

VI. “F RUSTRATION ”: A N OTE ON TERMINOLOGY

2–045 The expression “frustration” is used in a variety of senses; as Lord Devlin has said,
“We are very slovenly about the way in which we use expressions like ‘frustration’ ”.350
At least four usages are established: they refer respectively to frustration of contract,
frustration of the adventure, frustration of purpose and frustrating breach.

(1) Frustration of contract

2–046 The expression “frustration of contract” refers to the whole doctrine of discharge by
supervening events, irrespective of the type of event which brings about discharge.
In this sense, a contract is said to be “frustrated” whether discharge occurs by super-
vening destruction of the subject-matter, or by its temporary unavailability, or by
frustration of purpose (in the sense to be discussed below)351 or by supervening
illegality. This usage has, indeed, been criticised: for example, by Lord Wright
when he described “frustration of contract” as “an elliptical expression”, adding
that “the fuller and more accurate phrase is ‘frustration of the adventure or of the
commercial or practical purpose of the contract’ ”352; and by Mustill L.J. when he
said “Strictly . . . it is the adventure which is frustrated, not the contract”.353 But
(as the word “strictly” in the phrase just quoted seems to concede), these are criti-
cisms of a terminology which is generally accepted; indeed, Lord Wright, in the
speech to which reference has just been made, accepts that “the phrase . . . commonly
used is ‘frustration of contract’354 or more shortly ‘frustration’ ”—though he adds
that “the fuller and more accurate phrase is ‘frustration of the adventure or of the
contract.’ ”355 The common usage of “frustration” to refer to the entire doctrine of
discharge also finds legislative recognition in the opening words of Law Reform
(Frustrated Contracts) Act 1943; “Where a contract . . . has become impossible of
performance or been otherwise frustrated.”356 Clearly the draftsman regarded super-
vening impossibility as a type of frustration. Commonwealth legislatures have used
the expression “Frustrated Contracts Act”357 in the same sense.

350 [1966] C.L.J. 192 at 206.

351 Below, para.2–048, and Ch.7.
352 Joseph Constantine SS Line v Imperial Smelting Corp [1942] A.C. 154 at 182; cf.
Heyman v Darwins Ltd [1942] A.C. 356 at 400–401, per Lord Porter (“The contract is
not frustrated. Its future performance, or the adventure, is frustrated”).
353 FC Shepherd & Co Ltd v Jerrom [1987] Q.B. 301 at 323.
354 e.g. Re Thornett & Fehr and Yuills [1921] 1 K.B. 219 at 227 (“no frustration . . . of the
contract”).
355 Joseph Constantine case, above, p.182.
356
s.1(1).
357
e.g. British Columbia: Frustrated Contracts Act 1996; New South Wales: Frustrated
Contracts Act 1978; South Australia: Frustrated Contracts Act 1988; Victoria: Australian
Consumer Law and Fair Trading Act 2012, heading to Pt 3.2 (“Frustrated Contracts”).

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 “F RUSTRATION ”: A N OTE ON TERMINOLOGY 2–048

(2) Frustration of the adventure

This phrase might, from the dicta of Lord Wright and Mustill L.J. which have 2–047
been quoted in para.2–046 above, appear to be merely a more accurate way of
describing “frustration of contract”. It is, however, submitted that the expression
“frustration of the adventure” refers to a particular type of event which may
discharge a contract. In this sense, it is both narrower than “frustration of contract”
which refers generally to discharge by supervening events, irrespective of their
nature; and it is also different in kind: “frustration of contract” refers to the legal
effect of the supervening events (i.e. to the discharge of the contract) while “frus-
tration of the adventure” refers to one particular kind of cause of discharge. Thus
we can, for example, say that a contract can be discharged (or frustrated) by events
such as either destruction of the subject-matter or frustration of the adventure. It
makes sense to say that a contract may be frustrated by frustration of the adven-
ture; but to say that a contract is frustrated by frustration of contract makes no
sense, or is mere repetition. Most commonly, “frustration of the adventure” refers
to cases in which performance has not become permanently impossible, but has
been merely affected by temporary obstacles which are later removed: for
example, by temporary requisition or temporary delay to the arrival of a ship.358
The point is well put in a definition of “frustration of the adventure” by Bailhache
J. as “the happening of some unforeseen delay . . . of such a character as that by it
the fulfilment of the contract in the only ways in which fulfilment is contemplated
and practicable is so inordinately postponed that its fulfilment when the delay is
over will not accomplish the only object or objects that both parties to the contract
had in view when the contract was made . . .”359; this definition was later approved
in the Court of Appeal360 though the actual decision in which it was given was
reversed. Delay may not be the only illustration of “frustration of the adventure”,
but the phrase is generally used to refer to cases of discharge where the impossi-
bility which supervenes is either not total or not permanent.361

(3) Frustration of purpose

This expression is here used to refer to cases in which there is no “impossibility”, 2–048
even of a temporary nature, in rendering the performance promised by each party:

358 e.g. Hudson v Hill (1874) 43 L.J.C.P. 273 at 278 (“delay . . . so long as to frustrate the
mercantile adventure . . .”); Lloyd Royal Belge SA v Stathatos (1917) 34 T.L.R. 70 at 72
(“such interruption . . . as to amount to a frustration of the commercial adventure”);
Heilgers & Co v Cambrian SN Co Ltd (1917) 34 T.L.R. 72 (“frustration of the adven-
ture”); cf. Geipel v Smith (1872) L.R. 7 Q.B. 404 (“frustration of the very object”).
359 Admiral Shipping Co Ltd v Weidner, Hopkins & Co [1916] 1 K.B. 429 at 436–437.
360 Scottish Navigation Co Ltd v Souter & Co [1917] 1 K.B. 222 at 242, 250; cf. Bank Line
Ltd v Arthur Capel & Co [1919] A.C. 435 at 442; cf. ibid. at 445 (“frustration of . . .
commercial object”); Jackson v Union Marine Insurance Co (1874) L.R. 10 C.P. 125 at
148 (“the voyage . . . is frustrated”); Horlock v Beal [1916] 1 A.C. 486 at 513 (“frustration
of the voyage”).
361
See the discussion of partial and temporary impossibility in Ch.5, and also the discus-
sion of impossibility in the method of performance in Ch.4.

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 2–048 C HAPTER 2—D EVELOPMENT

for example, to cases such as the coronation cases (to be discussed in Ch.7).362 In
those cases, it was perfectly possible for one party to supply the premises or facili-
ties which he had undertaken to supply, and there was no impossibility affecting
the other party’s counter-performance (usually, a payment of money); but the
purpose for which the contracts had been made could no longer be achieved
because of the postponement of the coronation. In one sense, such cases could be
described as cases of “frustration of the adventure”; but they go beyond the cases
described in the preceding paragraph. In those cases, performance on one side is
actually prevented, if only for a limited time, and discharge can result from the
length of time over which the prevention or impossibility extended. In cases of
frustration of purpose, there is no such prevention at all, but discharge may never-
theless occur because the literal performance of one party’s duty has become
useless to the other. The fact that the coronation was merely postponed, not
permanently cancelled, does not affect this point. In the “frustration of the adven-
ture” cases a short delay (say of one week) might not have discharged the
contract,363 because the contracts in those cases were not contracts to be performed
on a fixed day or days. In at least most of the coronation cases the facilities for
viewing were to be provided on a specified day or on two specified days. The
crucial fact in these cases was not the length of the delay before the processions
eventually took place (of about six weeks in relation to one of the processions and
of about four months in relation to the other364), but the fact that the processions
did not take place on the only day or days on which the facilities were, under the
relevant contracts, to be made available. The length of the delay could be relevant
only where the contract expressly provided for flexibility in this respect365; but
where this was the position the express provisions in question were held to have
excluded the doctrine of discharge, so that there was no scope for the application
of the notion of “frustration of the adventure” by long delay.
2–049 In the United States, the distinction between discharge by impossibility (or
impracticability)366 and discharge by frustration of purpose was at one time so
sharply drawn that, in the original version of the Restatement, the two concepts
were discussed at widely separate points.367 The reason for this arrangement may
have been that discharge by mere frustration of purpose was formerly viewed in
the United States with some hostility.368 When this hostility subsided, the arrange-
ment of the Restatement was in turn criticised369 as it tended to overemphasise the
differences between the two grounds of discharge, and to attach insufficient
significance to the features which they had in common. The Restatement 2d
accordingly treats them in the same chapter,370 while devoting separate sections to

362 See below, paras 7–006 to 7–014.

363 e.g. such a short delay would not have discharged the charterparty in Bank Line Ltd v
Arthur Capel & Co [1919] A.C. 435 or that in Jackson v Union Marine Insurance Co
(1874) L.R. 10 C.P. 125.
364 See below, para.7–006.
365 See provisions of the kind discussed above, para.2–038, at n.297.
366 For “impracticability,” see below, Ch.6.
367 Frustration of purpose in §288; impossibility in §§ 454–459, with no more than a cross-
reference to frustration of purpose in § 454, Comment b.
368
See below, para.7–033.
369
Corbin, Contracts, para.1322.
370
Ch. 11.

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discharge by supervening “Impracticability”371 and by “Frustration”.372 English

law, too, regards them as illustrations of a single principle of discharge by super-
vening events; but the distinction between them is nevertheless significant not
only from an analytical, but also from a practical, point of view, for the rules
which govern discharge are in some respects stricter in cases of supervening frus-
tration of purpose than they are in cases of supervening impossibility.373

(4) Frustrating breach

This expression refers to the type of breach which is sufficiently serious to justify 2–050
the victim’s rescission of the contract, in the sense that it gives the victim the
option of refusing, on account of the breach, to perform his own part of the
contract, and to accept further performance from the party in breach.374 As Devlin
J. has pointed out,375 this use of the expression “frustration” antedates its use in
the context of the doctrine of discharge by supervening events, and indeed the
establishment of that doctrine as a general principle of English law. Obviously
cases of “frustrating breach” are distinct from the doctrine of discharge by super-
vening events (the “doctrine of frustration”) since that doctrine cannot be invoked
by a party whose “default” brings about, or amounts to, the supervening event
which interferes with performance; and for this purpose a “frustrating breach”
clearly amounts to default.376
The position is, however, complicated by the fact that failure in performance 2–051
does not necessarily amount to a breach, for a party who fails to perform may be
entitled to rely on an excuse for non-performance. Such an excuse may be
provided either by the general law or by an express provision of the contract.377
Where such an excuse applies, the party failing to perform is not in breach, so that
there can be no question of a “frustrating breach”. But there is room for an analo-
gous concept of “frustrating failure”: that is, of an excused failure in one party’s
performance which gives the other party an option to rescind,378 without auto-
matically discharging the contract under the “doctrine of frustration”.379 An
excused failure to perform may, moreover, produce yet a third consequence: that
of operating only as a temporary or partial excuse for the party whose perform-
ance is prevented,380 and of sometimes making a corresponding temporary or
partial excuse available to the other party.381 Which of these three legal conse-
quences flows from an excused failure in performance depends on the degree of

371 § 261.
372 § 265.
373 See below, paras 7–014, 7–017, 7–024.
374 e.g. Tarrabochia v Hickie (1856) 1 H. & n.183 at 185: McAndrew v Chapple (1866)
L.R. 1 C.P. 643 at 649 (“frustrates the intention of the parties”).
375 Universal Cargo Carriers Corp v Citati [1957] 2 Q.B. 401 at 430–431.
376 See below, para.14–010.
377 See Treitel, (13th ed.), paras 17–059, 17–061.
378 ibid., para.17–059.
379
This was, for example, the position in Poussard v Spiers & Pond (1876) 1 Q.B.D. 410;
see below, para.5–060, for further discussion of the distinction drawn in the text above.
380
e.g. H R & S Sainsbury Ltd v Street [1972] 1 W.L.R. 834.
381
e.g. Minnevitch v Café de Paris (Londres) Ltd [1936] 1 All E.R. 884.

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its seriousness. The highest degree of seriousness is required to bring about auto-
matic discharge under the “doctrine of frustration”; a lower degree of seriousness,
equivalent to that required in cases of “frustrating breach”, is required to give rise
to an option to rescind; while no requirement of seriousness need be satisfied
where a party simply relies on the event as an excuse for partial or temporary non-
performance (as, e.g. where a short temporary illness operates as a temporary
excuse for non-performance by an employee of his obligation to work).

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