Doctrine frustrations in English negotiable law

participation in major corporations and etc., sides often strive subdue english-
skomu law and hand over on the consideration London international arbitration-
th court. Although in recent years in force different reasons (and not only geopolitical)
this trend, on opinion specialists, some weakened ⁶ , she is hardly whether come down not No
in foreseeable the future. Except Togo, in respect Russia USA, United Kingdom, row

2

Cm.: Anson AT. Negotiated right. M., 1984. C. 306, 307. Classical example- precedent on cause
paradine v Jane [1647] EWHC KB J5.

3
4
5

There same. C. 306.

stone R., Devenney J., Cunnington R. text, cases and materials on contract law. london, 2011.P. _ 482.
Cm., eg: Agarkov MM. Favorites works on civil law. T. II. M., 2002. WITH. sixteen, 41 - 54;

McKendrick E. et al. force Majeure and frustration of contract. london, 1995.P. _ 33.

6

Cm.: Akchurin M.A., molpha M. Asian arbitration centers: call traditional arbiter
bright institutions? // Law. 2015. No. 10. S. 71–87.

189


Right in contemporary world

other states and European union introduced with 2014 G. succession economic sanctions, a
our the country symmetrically answered on the This. War sanctions spawned special pressure
on the feasibility falling in sphere them actions foreign economic contracts ⁷ .
All This He speaks in benefit need research domestic jurists
English frustrations contracts .

emergence and becoming doctrine frustrations
in English negotiable law

emergence doctrine frustrations agreements in English law bind with
precedent on cause Taylor v Caldwell (1863) 3 B & S 826. It was rented building with goal
holding in German concert. But before how concert was Dan, building destroyed fire.
Landlord demanded rental fee. Court royal benches I decided, what treaty
was frustrated and defendant not must to pay rental fee. Judge Blackburn on
this cause said: "AT absence straight or implied warranty existence-
nia things treaty not maybe be interpreted as positively expressed contract,
but should — as subordinate implied condition about volume, what sides will
released from responsibilities, if before violations execution will become impossible
due to death things at absence malfunctions counterparty".
So the way new doctrine basis futility agreements was recognized
death individually defined things, being object obligations . At
this becoming Institute frustrations agreements based on the theories "sub-
able conditions" ( implied conditions ) ⁸ . Then judicial doctrine became to admit
frustrating treaty events subsequent death ₉ or making execution
obligations impossible illness ₁₀ sides in contracts personal hiring.

Soon "new doctrine came out behind framework literal impossibility and was race-
extensive on the situations when created "futility maritime enterprises»» ¹¹ , what
can see on the example affairs Jackson v Union marine Insurance co Ltd (1873) LR ten CP
125. plaintiff — owner ship concluded treaty chartering, on to whom vessel
must It was go from Liverpool in newport, a from Newport already with cargo glands-
foot timber — in San Francisco. Ship released from Liverpool but sat down on the stranded. Six
weeks later charterer hired other vessel. sat down same on the stranded ship was withdrawn with
her three days later, but his repair took more some months. plaintiff demanded
from insurance defendant company compensation freight on charter. But performance his
requirements depended from response on the question: lawfully whether charterer refused from
contracts? Appeal court treasury chambers I decided, what delay led to
termination agreements chartering vessel.

Then in quality frustrating circumstances became stand out "essential-
noe change in basis contracts", as calls his R. Good ¹² , claiming what given

7

Cm.: Saveliev A.I. Unilateral economic sanctions USA: sight co sides American
Kansky and Russian rights // Law. 2015. No. 5. S. 108–131.

eight

Cm. details: Treitel G. The Law of contract. 11th ed. london, 2003.P. _ 201–214.

nine

Cm.: Stubbs v Holywell Railway Co. (1867) LR 2 Ex 311.

^ten Cm.: Robinson v Davison (1871) LR 6 Ex 269.
^eleven Anson AT. Decree. op. S. 308.
¹² Goode R. commercial law. 2nd ed. london, 1995.P. _ 142.

190


A.A. Chukreev. Doctrine frustrations in English negotiable right. WITH. 188–201

rule for the first time applied in deed Krell v Henry [1903] 2 KB 740. This is It was one from So
called "coronation cases." AT 1902 G. defendant hired at plaintiff apartment on the two
days (26 and 27 June) with goal viewing designated on the This time coronation Edward
VII. However future king got sick and coronation (the only one once behind all history
Great Britain) moved. Appeal court I decided, what treaty frustrated.
Last thing case interesting also and topics what it maybe be considered in quality at-
measure frustrations agreements at absence, strictly saying impossibility his use-
definitions: in controversial treaty not It was mentions about coronation processions, but
court counted processions and location leased apartments lying in basis
agreement , which significantly changed ¹³ .
mass judicial cases about futility contracts caused First World war. AT eventually
more one circumstance which maybe fully frustrated Contract, was
recognized subsequent illegality ( supervening illegality ). Bright example — case Ertel
Bieber & co v Rio Tinto co Ltd [1918] AC 260. Two contracts, prisoners in 1914 G., call-
us were provide sale British supplier German companies copper
ores in 1915–1919 gg. Treaties contained condition, suspending them action,
if due to wars sides will incapable fulfill their obligations. Pala-
that same lords decided what treaties become worthless as contradictory "public
Noah politics" ( public policy ) ¹⁴ .
AT that same period It was withdrawn one from restrictions applications doctrine fru-
stration contracts, essence whom in volume, what event, leading to futility, must
hit general intention sides ₁₅ . By cause blackburn bobbin co Ltd v. T. W. Allen & sons
Ltd [1918] 2 KB 467 defendant pledged put lumber, imported them.
To delivery should were proceed in July and to complete her in november 1914 G. War on the-
started in august 1914 G., before how salesman started perform contract, and import pi-
scrap materials stopped. Buyer demanded compensation behind violation obliga-
evidence. Appeal court acknowledged right plaintiff on the reimbursement losses. Lord Justice
Pickford at this said: "Salesman in this deed pledged put lumber
before iron roads in halle, and buyer not bound then, as the supplier intended-
Xia deliver there lumber. … Subject research, I guess must be
something, what both sides had in mind when entered in contract, such as, For example,
Existence concert hall in deed Taylor v Caldwell or duration prepared
ki ship for fulfillment contract in deed Jackson v Union marine Insurance Co. Here
same No nothing, pointing on the then, what plaintiff assumed and No reasons think his
assuming what salesman should continue have ordinary opportunities for
fast sending lumber from Finland. how I said, This It was question
for plaintiff absolutely insignificant. This is not It was question formative basis
agreements…”

More one from circumstances mighty fully frustrated contract, was
recognized subsequent impossibility performance due to state interfere-
. _ An example here is an case Metropolitan water Board v dick, Kerr & co Ltd

^thirteen Cm.: Anson AT. Decree. op. pp. 306, 309, 445.

^fourteen Term "public politics" in Anglo-Saxon law — synonym concepts "public
order" ( ordre public ) in European continental legal traditions, in volume including in Russia —
concepts "basics law and order (public order). Cm.: Getman-Pavlova I.V. international
private right. M., 2013. S. 252, 253.

^fifteen Anson AT. Decree. op. S. 320.

191


Right in contemporary world

[1918] AC 119. AT 1914 G. defendant pledged before capital management water supply
nia implement construction reservoir and irrigation work in flow six
years. AT 1916 G. government ordered stop work. Ward lords decided what
treaty should reckon futile on the date government order. Lord Dandin
( Dunedin ) here noted following: "Act government, which acted on the under-
hawker as Force Majeure (a vis major) thanks to his consequences made contract, if
summarize, about works on the others conditions in difference from those, Job on the which was
suspended…”
Later, on opinion stated in famous textbook contractual rights AT. An-
sona ¹⁶ , formed new theory futility, essence which in volume, what "falling away basic
you contracts", frustrating last, not depends from any implied
conditions : Russian obschestvo d'lia Izgotovlenia Snariadov l'military Pripassov v John Stirk &
sons Ltd (1922) ten Ll L Rep 214; Tatem (WJ) Ltd v Gamboa [1939] one KB 132. On the our sight,
roots this concepts can see and in precedent on cause Krell v Henry .
More one important limitation doctrine futility agreements - arbitrary , you-
called side agreements frustration ( self-induced frustration ). So, on cause maritime
National fish Ltd v Ocean Trawlers Ltd [1935] AC 524 defendant enjoyed fleet fish-
fishing trawlers in which included own and two chartered vessel, one
from recent It was hired at claimant. On the usage trawlers required ruler-
natural license. defendant could get only three licenses, and is he distributed two
licenses among two own trawlers a third — trawler not hired at claimant,
a then said what more not tied charter, insofar as his goal became futile. Court
I decided, what charter not was frustrated. Judge Wright emphasized: "Essence frustra-
tions is what she is not should be caused deed or choice sides."

Further development doctrine frustrations agreements

Theory "implied conditions", originally allowing substantiate ogra-
swearing English courts freedom agreements in special cases frustrations according to
sheniya, co time becomes brake in development teachings about last, not Giving her
objective explanations. AT purposes withdrawals discovered contradictions in deed Davis
contractors Ltd v Fareham Urban District Council [1956] AC 696 Chamber lords was at-
menena new concept — theory "changes in commitment” ¹⁷ or "radical
changes in obligation" ( radical change in the obligation ) ¹⁸ . plot affairs is. Under-
hawker pledged build Houses for defendant behind eight months on fixed
price. AT mostly on reason lack workers construction took almost two of the year
and cost contractor expensive. He addressed in court, referring on the futility agreements and
demanding "fair rewards" behind completed work. Ward lords decide-
la, what treaty not was frustrated. Definition frustrations contracts , formulated
bathroom on given cause lord Radcliffe, became very authoritative: "Futility
It has place in all cases, when right recognizes what without guilt any from parties
negotiable obligation became impossible execute, because what circumstances,
in which requested execution, done would his significantly excellent from Togo,

^sixteen There same. pp. 316, 317.
¹⁷ There same. S. 318.
^eighteen Beatson J., Burrows A., Cartwright J. Anson's Law of contract. Oxford, 2010.P. _ 487, 488.

192


A.A. Chukreev. Doctrine frustrations in English negotiable right. WITH. 188–201

what It was provided contract. Non haec in foedera veni. This is not then, what I pledged
do" ¹⁹ .

Then application theories "changes in obligation" continued For example,
in deed Tsakiroglou & co Ltd v Noblee and orl GmbH [1961] 2 WLR 633. AT October 1956
G. plaintiff pledged sell buyer peanut with condition transportation from Port Sudan in
Hamburg in flow November–December 1956 G. 7 October 1956 G. plaintiff chartered cargo
place in ship, planning come in in Port Sudan in necessary time. But 2 november
1956 G. Suez channel was closed. Salesman tore off delivery, and, when appeared before
court, referred on the frustration. Ward lords decided what futility agreements No,
So as was reasonable and doable alternative, let be possibly more expensive —
way around cape Kind Hope.

Note what R. Hood an approach, used in deed Davis contractors Ltd v Fareham
Urban District council , directly connects with conclusions on cause Krell v Henry ₂₀ . AT light
this theory "falling away basics contracts", roots which (on AT. Anson ) also can
see and in Krell v Henry , — appears before us in quality peculiar transition-
Noah forms concepts "changes in commitment” ²¹ .
Last theory fits in in more one allocated here concept — "theory
interpretations" ( "construction theory" ) ²² , which many specialists counts today-
nya most adequate reflection entities frustrations contracts. emergence
given concepts bind with saying lord Lorburn on cause FA Tamplin
steamship co Ltd v Anglo-Mexican Petroleum Products co Ltd [1916] 2 AC 397, which pre-
lay down in quality main test on the frustration question: "What It was true meaning-
scrap contracts? Insofar as sides not provided for unforeseen circumstance,
should whether court to tell, what This obviously, — they would treated to this fact as to
end them contract?"
how we see in doctrine No unanimity relatively classification and values
theoretical concepts analyzed institute, however, on recognition scientists,
between these concepts few practical differences ²³ . AT comparative legal
plan reversible Attention, what Russian civil legislation not fixes
definition concepts impossibility performance obligations . Not worked out devil-
controversial definitions given term and in domestic doctrine. universally recognized
is an then, what analyzed impossibility should hinder execution
debtor obligations in nature , real his execution ²⁴ .

^nineteen Cit. on: Anson AT. Decree. op. WITH. 318. On the given definition can meet links in others
affairs, eg: amalgamated investment and property co Ltd v John walker & sons Ltd [1977] one WLR 164;
Pioneer Shipping Ltd v BTP Tioxide Ltd (The Nema ) [1981] 3 WLR 292.

²⁰ Goode RM Op. cit. P. 142.

²¹ Some modern scientists lead precedent on cause Krell v Henry in quality example,
truth, example extremely rare applications theories "disorders goals" ( frustration of the purpose )
contracts. Cm.: Andrews N. Arbitration and contract law. Common law Perspectives. Cham, 2016. P. 276;
Stone R., Devenney J., Cunnington R. Op. cit. P. _ 921–924.
²² Beatson J., Burrows A., Cartwright J. Op. cit. P. 488; stone R., Devenney J., Cunnington R. Op. cit. P. 484–
488; Treitel G. Op. cit. P. 923.

²³ Beatson J., Burrows A., Cartwright J. Op. cit. P. 484–489; stone R., Devenney J., Cunnington R. _ Op.
cit. P. 482–488; Treitel G. Op. cit. P. 920–923.

²⁴ Cm., eg: Agarkov MM. Decree. op. S. 9.

193


Right in contemporary world

General provisions about impossibility performance obligations contained in chief
ve 26 "Cessation obligations" civil code Russian Federations (Yes-
more — GC RF) ²⁵ . Before Total, P. one Art. 416 GC RF reads: "Commitment stops
impossibility performance, if she is caused coming after occurrence
obligations circumstance behind which neither one from parties not answers." AT 2015 G.
the paragraph after words "if she is caused" was added words "coming on-
after occurrence obligations"; topics most It was legalized doctrinal de-
leniya impossibility performance on the initial and subsequent . And now,
if literally interpret cited position law, only subsequent not-
possibility maybe reckon at us impossibility performance obligations (what
related our impossibility with frustration ).
AT 2009 G. in Concepts development civil legislation Russia apply-
effectively to Art. 416 GC RF envisaged need "define concept about-
standing, behind which neither one from parties not answers" ²⁶ . At this It was noted
what "to number such circumstances may be assigned those, which came after
occurrence obligations, in volume including coming subsequently failure to
debtor to execution." So the way It was suggested First of all, legalize
division impossibility performance on the initial and next ₂₇ and, Secondly,
define after all essence such — subsequent — impossibility. However both
formulated in Concepts suggestions, on the our sight, Considering absence
in doctrine unanimity on relevant problems appear on the today
equally unreasonable. not without reason from implementation second from them legislator on the
given stage refused.

At this grounds release from civil law responsibility behind on the-
destruction obligations fixed in others provisions GC RF — in chapter 25 "Answer-
property behind violation obligations." So, on general rule fixed in P. one
Art. 401 "Foundations responsibility behind violation obligations" GC RF, face, not is-
plump obligation or performed his inappropriate the way bears answer-
property at availability guilt ( intention or negligence ).

Here significant then, what debatable in domestic science is an question
about legal consequences nonrandom impossibility performance obligations. Se-
today all more scientists at us converge in opinion what and at such impossibility
performance obligation ( regulatory ) stops regardless from will sides, but
arises new — protective — commitment, in framework whom to responsible
behind This side should apply certain sanctions ²⁸ .

At this not deprived grounds and second an approach: obligation stops in force
impossibility performance fully only in case, if last "caused about-

²⁵ Civil code Russian Federation. Part first // NW RF. 1994. No. 32. Art. 3301.

²⁶ Concept development civil legislation Russian Federations (approved decision
Council at President Russian Federations on codification and improvement civil
legislation from 07.10.2009) // Herald Supreme Arbitration ships Russian Federation. 2009.
No. 11. S. 76.
²⁷ Vitryansky V.V. Some Problems reforming legal provisions about obligations /
Main Problems private rights: compilation articles. M., 2010. S. 94.
²⁸ Cm.: Karapetov A.G. lawsuit about awarding to execution obligations in nature. M., 2003. WITH. 110 111;
Mukhacheva E.S. impossibility performance obligations in Russian, European and uniform
private right: abstract dis. … to. Yu. n. Tomsk, 2013. S. 15, 16.

194


A.A. Chukreev. Doctrine frustrations in English negotiable right. WITH. 188–201

standing, behind which neither one from parties not answers." If a same answers — obya-
pledge, stopping in relevant regulatory his parts, will pro-
should exist already as protective legal relationship. This point vision at us
can name traditional; proceeding from from literal interpretations P. one Art. 416 GC RF,
such approach stick to and legislator, and law enforcement practice ²⁹ .
Between topics first from specified two approaches more preferred So as great-
new design termination obligations impossibility performance calculated
on GC RF on the application directly to execution obligations in kind , to regula-
active legal relations, a to protective legal relations — only mediated-
but , with taking into account norms about grounds responsibility behind violation obligations .
AT connections with this interesting following contradiction, identified previously law enforcement
nominative practice: debtor maybe be guilty in occurrence subsequent
legal impossibility performance obligations; in such situations with one
hand, obvious impossibility performance obligations in kind , with another, beech-
rampant interpretation P. one Art. 416 and P. one Art. 417 GC RF (dedicated directly
legal impossibility ) not allows think obligation discontinued after all
impossibility his performance caused circumstance behind which one from parties
"answers". If a to attempt take off This contradiction behind check qualifications legal
Czech impossibility in quality impossibility behind which debtor "respond" not
maybe (not is he accepts legal acts, her defiant, a organ public law
education), then debtor unreasonably maybe to avoid responsibility before cre-
speaker.
Due to this in P. 5 Informational letters Presidium Supreme Arbitration-
foot ships RF from 12/21/2005 No. 104 was formulated next legal position
(which, truth, concerned narrow circle relevant cases): "Review at debtor
licenses, caused illegal actions licensee, and default in sacred
zi with this obligations not are basis termination obligations debtor
in result publications act state body (article 417 GC RF). The an approach
was supported (in more wide plan) doctrine.
Legislator This accepted. AT 2015 G. Art. 417 GC RF was added next on-
position, made P. 2 her updated editions: "Commitment not counts
discontinued if edition act body state authorities or body local
self-government, entailed impossibility performance obligations, caused wrong-
dimensional actions (inaction) most debtor."

However, repeat, more faithful is an an approach, according to to whom obligation
(regulatory) stops and then, when impossibility his performance caused
circumstance behind which that or other side "answers" after all speech goes only about
impossibility fulfill obligation in nature . So, on the our sight, P. 2 Art. 417
GC RF in current editions is an redundant superfluous.
AT this context costs draw Attention, what analyzed doctrine frustra-
tions with regard to to meaning influence parties agreements on the his feasibility ( self-
induced frustration ) was added precedent on cause Shepherd (FC ) & Co Ltd v Jerrom
[1986] 3 WLR 801. AT September 1979 G. young Human concluded four year old treaty

²⁹ Cm.: P. 5 Informational letters Presidium Supreme Arbitration ships Russian Fe-
derations from 12/21/2005 No. 104 "Review practices applications arbitration courts norms civil
code RF about some grounds termination obligations" // Herald Supreme Arbitration
ships Russian Federation. 2006. No. 4.

195


Right in contemporary world

production learning ( contract of apprenticeship ) with employer. AT June 1981 G.
student was convicted behind attack and fight in public place on conspiracy and cook-
raven to indefinite period correctional re-education on borstal
system. Through 39 weeks is he was released. However in September 1981 G., when student
was in Borstale, his employer declared about termination them agreements production
foot learning due to frustrations. Young Human addressed in Court on labor
disputes saying about illegal layoffs, and court agreed with his argumentation. However
appellate court got up on the side employer, recognizing what borstal punishment-
nie appeared frustrating treaty event.
Should recognize what, in difference from appearance at us P. 2 Art. 417 GC RF in current
editions, specified precedent — This really progress in development corresponding-
current doctrine, insofar as frustration is yourself base termination
contracts, on general rule in in general and respectively release parties from from-
responsibility behind his failure.
Further costs Mark, what judicial doctrine with big labor recognizes possible
ness frustrations contracts rent , about how testify affairs National Carriers Ltd v
Panalpina (Northern ) Ltd [1981] 2 WLR 45 and Pioneer Shipping Ltd v BTP Tioxide ltd . Afterbirth-
her case also interesting topics what in result his consideration appeared precedent
recognition strikes able lead to futility contracts.
AT my queue, case National Carriers Ltd v Panalpina (Northern ) Ltd is an typical
nym example aspirations English courts keep stability contractual from-
wearing. AT 1977 G. appellant rented at defendant on appeals on the ten years commodity
stock. AT 1979 G. local power due to danger, outgoing from bent over
against building, closed the only street, giving access to warehouse. Permission
demolish emergency building It was given in 1980 G., and on plan the street should was open up
in 1981 G. However with closure streets appellant stopped payment rent, a landlord
demanded to repay debt on agreement. Ward lords refused in recognition
agreements rent frustrated.
This discouraging story, as not without irony writes modern research-
Tel D. Thomas ³⁰ , remembering precedents on affairs Davis contractors Ltd v Fareham Urban
District Council and National Carriers Ltd v Panalpina (Northern ) ltd , not prevented trying
resurrect doctrine frustrations developers in deed Gold group Properties Ltd v BDW
Trading Ltd [2010] BLR 235. BDW Trading Ltd (developer) I decided build big
amount houses and apartments on prisoner with owner land site
development agreement ( development agreement ), in which remuneration BDW
determined on formula, based on the achieved prices sales. However in then time
me, when construction work should were start, spring 2008 G. already It was feel-
Timo influence world economic crisis. To May 2008 G. sales builders
decreased on the one third on comparison with previous year. Forecasts showed what
developers will not in able reach even minimal holiday pay prices, pre-
envisaged negotiable formula. BDW declared about frustrations contracts. However
owner not agreed with developer. Dispute was transferred on the consideration in court,
which not installed frustrations development agreements. Such decision It was
accepted co link on the Davis contractors Ltd v Fareham Urban District Council and with taking into account
output judges, what sides foresaw possibility fall market real estate.

^thirty Thomas D. frustration and force majeure: a hard line in English law // Construction law international.
2011 Issue 2.P. _ 22.

196


A.A. Chukreev. Doctrine frustrations in English negotiable right. WITH. 188–201

And development agreement even envisaged possibility revision
or, if This impossible, expert definitions minimal prices in corresponding-
current formula.
Costs notice what and Russian courts extremely rarely and carefully apply nor-
we about impossibility performance obligations and about significant change the situation
. _ So, at all recently Supreme Court Russia formulated legal posi-
tion, what self on yourself "change course foreign currencies on relation to ruble
it is forbidden regard as significant change circumstances being grounds
eat for changes agreements" in compliance co Art. 451 GK RF ³¹ .
Today question about impossibility performance obligations especially relevant for
us in context introductions miscellaneous kind international economic sanctions. If a
agreement sides, falling in sphere actions such sanctions, or his execution
will violate statutory right Great Britain or contradict English "pu-
Bleach politics", possibly in English justice confession frustrations this
agreements due to subsequent illegality ₃₂ . Truth, English courts before now since
extremely rarely and carefully applied doctrine frustrations agreements in affairs, related
with economic sanctions ₃₃ .

On the current stage development doctrine frustrations agreements British scientists ³⁴ and
practice ³⁵ especially allocate precedent on cause Edwinton commercial Corporation v Tsavliris
Russ (world wide salvage & towage ) Ltd (the Sea Angel ) [2007] 2 Lloyd's Rep 517, which with one-
Noah hand, was confirmed refusal from such too much abstract criteria as goal
or the basis agreements in benefit analysis changes in obligation ( Davis contractors Ltd v
Fareham Urban District Council ), a, with another, proclaimed need "multifaq-
thorny approach" ("multi-factorial approach" ) for qualifications futility agreements.
AT specified deed Lord Justice Ricks defined row factors which necessary
consider at such approach. Before Total This conditions most contracts, his matrix
or context, knowledge, waiting, assumptions and reflections sides, in in particular
relatively certain risk on the moment conclusions contracts, in any case
so, how much they may be attributed parties mutually and objectively. Cro-
me Togo, This character subsequent events (doing execution agreements unrecoverable
possible or difficult) and reasonable and objectively justified calculations hundred-
ron in respect opportunities future performance in new circumstances. At
this to number most important factors which should have in mind court, applies
then, what goal doctrine frustrations agreements is an justice .

Should Mark, what English legal doctrine frustrations agreements in
many excellent from civilistic concepts force majeure ( force majeure ) ³⁶ . Before

³¹ Cm.: Definition Supreme ships Russian Federations from 09/13/2016 No. 18-KG16-102; P. eight
Review of the judicial practice of the Supreme Court of the Russian Federation No. 1 (2017), approved by the Presidium
Supreme ships Russian Federation 16.02.2017 // ATP Consultant Plus.

³² Alexander K. Economic Sanctions: Law and public policy. Basing stock, 2009.P. _ 194.

³³ Cm.: Libyan Arab foreign bank v bankers Trust Co [1989] one QB 728; Islamic Republic of Iran Shipping
Lines v. steamship Mutual Underwriting Association (Bermuda) Ltd [2010] EWHC 2661 (Comm); Melli bank
PLC v. Holbud Ltd [2013] E.H.C. [1506](Comm).
³⁴ Cm.: Andrews N. Op. cit. P. 273–275; Beatson J., Burrows A., Cartwright J. Op. cit. P. 488, 489.
³⁵ Cm.: Islamic Republic of Iran Shipping Lines v. steamship Mutual Underwriting Association (Bermuda)
Ltd; Melli Bank PLC v. Holbud Ltd.

³⁶ Cm. details: McKendrick E. et al. Op. cit. P. 334–353.

197


Right in contemporary world

Total frustration stops contract. AT opposite this force majeure —
doctrine, according to which corresponding let liberates side from
responsibility behind default certain obligations. Although Force Majeure
maybe be used side, violating his commitment, and for Togo, to
to attempt stop or change contractual rights and responsibilities sides.
So the way if treaty not recognized frustrated not arises must-
news parties revise his conditions (if between them No agreements about otherwise),
Yes and court not entitled in such situations terminate (or change) treaty on the basis
difficulties his performance ( hardship ). By about last costs will add what pro-
opposite regulations on the happening significant changes circumstances fixed-
us in chapter 29 "Change and termination agreements" GC RF (art. 450-453). how known
in civilistic traditions norms about significant change circumstances (as in
Art. 450–453 GC RF) and about force majeure ( irresistible strength on GC RF — This, before Total,
paragraph 3 of Art. 401) are relatively independent legal institutions.
So, once fundamental position in English law is an imperative
about need fulfillment contractual obligations, even if This maybe show-
Xia unfounded or unfair in certain circumstances then consider-
etsya, what sides themselves should take care about their interests and include corresponding-
ing adaptive provisions in agreements. By this reason big amount
commercial contracts contains provisions about force majeure circumstances , and
exactly in context interpretations these provisions in English law can discovered
live some precedents ³⁷ .

Conclusion

Being peculiar legal institute, frustration agreements close on own-
her nature to such applied more co times ancient Rome in countries European
continental legal families civil law designs, as impossible
ness performance obligations . Private chance circumstances leading to not-
opportunities performance, is an irresistible force or Force Majeure ( vis major, case
major ), Yes and simple happening ( case, case minor ) maybe call such impossibility.
So frustration as legal design in certain sense close and to
occasion , as simple , So and qualified . AT end ends all these legal on-
conceptions designate circumstances, capable spare debtor from responsibility
behind violation obligations. not without reason English courts recognize and apply force-
major reservations in contracts.
With another hand, legal institute frustrations agreements not matches fully
with meaningful sides with construction impossibility performance . frustration not
limited classical — "absolute" — impossibility in quality the basis-
nia his occurrence. AT this sense frustration partly corresponds civi-
leafy extreme difficulties performance obligations .

At this in Russian law we not find universally recognized definitions concepts
impossibility and extreme difficulties ( economic impossibility ) use-
opinions obligations, and exist real problem demarcations these phenomena on the

³⁷ McKendrick E. et al. Op. cit. P. 333, 334. Cm. also: Andrews N. Op. cit. P. 169 249; Thomas D. Op. cit.
P. 22.

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A.A. Chukreev. Doctrine frustrations in English negotiable right. WITH. 188–201

practice. On the this background doctrine frustrations contracts, which with civilistic
positions maybe seem eclectic and some amorphous on the himself deed pre-
puts yourself experience comprehensive approach to legal evaluation external, coming-
shchih on relation to parties agreements circumstances obstructing execution
last or significantly This execution hindering.
Costs add, frustration not suspends execution, a stops before-
dialect, moreover, on general rule the whole contract. feature given legal
Institute also is an and then, what is he not suggests changes contracts. This is self
on yourself testifies First of all, about extraordinary analyzed mechanism
(and grounds his applications), a, Secondly, about high values in English law
freedom will and contracts. AT light this logical, what install fact frustrations and
recognize treaty discontinued maybe only court (arbitrator court).
The foregoing higher testifies about need study in our legal
denia frustrations agreements not only in academic purposes, but and for ensure
work domestic lawyers in sphere applications English contractual rights and
doctrinal influence the last one a also, possibly, for improvement corresponding
responsible Russian legal norms and practices them applications.

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199


law in the Modern World

The Doctrine of Frustration in English Contract Law

Andrew A. Chukreyev
associate professor, Department of Labor law and business, Institute of State and law, Tyumen
State university, Candidate of legal Sciences. address: 6 Volodarskogo str., Tyumen 625003,
Russian Federation. E-mail: [e-mail]

Abstract

Mankind has faced in the past and will inevitable face in the future with the powerful forces of nature
and man made, which are often dramatic and lasting impact on the society, economy, commercial
and other contracts. frustration — one of the original institutions of English law, which allows the
court to release the parties from further performance of the contract upon the occurrence of certain
circumstance, when the performance becomes impossible or extreme economically unprofessional.
The emergence of this institution in the second half of the 19th century preceded by a long period
during which legal practice consistently followed the principles of pacta sunt serving . The article
considers the basic judicial precedents illustrating the development of the doctrine of contract
frustration in English law, sets out the views of English jurists in this field, an comparative analysis of
this doctrine and relevant norms of Russian law was attempted. The methodological framework of
this research based on a set of methods of research knowledge, among which the main ones are
historical and comparative law methods. For a century and a half of its development the English law
doctrine of frustration of contract has evolved significantly. During this period understanding of the
nature and types of circumstances that can cause frustration of the contract, of the essence of the
frustration, of the necessary restrictions on the use of this doctrine, as well as the legal consequences
of frustration, has been improved. The author comes to a conclusion about the need to study the
doctrine of frustration of contract not only in academic purposes, but also for the improvement of the
relevant Russian legal norms, their application, as well as to ensure the operation of national lawyers
in the sphere of application of the English law and law of countries that have experienced the impact
of this doctrine.

keywords

contract; frustration of contract; performance of contract; impossibility of performance; force
majeure; fault; precedent.

Citation: Chukreyev A. _ A. _ (2017) The Doctrine of frustration in English contract law. Pravo. Journal
Vysshey shkoly ekonomiki, no 4, pp. 188–201 (in English)

DOI: 10.17323/2072-8166.2017.4.188.201

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