A.C. AND PRIVY COUNCIL. 265, DENNY, MOTT & DICKSON, LIMITED APPELLANTS; — HLL. (Sc,)* AND. 19. JAMES B. FRASER & COMPANY, LIMITED = Mar. 20, 21, RESPONDENTS. 23; May 19. Contract—Frustration—Trading agreement between timber merchants —Provision for letting one party's timber yard to other party—Option to lessee to purchase on termination of agreement—Dealing in timber rendered impossible by emergency legislation—Effect on option. An agreement entered into in 1929 between the appellants and ‘the respondents, who were tirtber merchants, narrated that it had been arranged between them that the respondents should purchase all their supplies of certain wood from the appellants and should let them a certain timber yard with an option to purchase it or take it on long lease on certain terms. The first four clauses of the agreement regulated the dealings in timber between the parties. Clause 5"provided for the termination of the agreement on’notice given by either party. Clause 6 provided for the letting of the timber yard “to enable the foresaid trading agreement to be “carried out.” Clause 8 gave the appellants, “in the event of the “foregoing trading agreement being terminated by either party as “aforesaid, . . . the right as at the date of the termination of “the said agreement ” to purchase the timber yard at a certain price or to take a lease of it at a certain rent. In consequence of the Control of Timber (No. 4) Order, 1939, further transactions between the parties became impossible from the end of September, 1939, but the appellants continued to occupy the timber yard and in July, 1947, a letter was sent on their behalf to the respondents purporting to give notice to terminate the agreement and also of their intention to exercise the option of purchase :— Held, that the agreement was not composite, but was a single contract, the main object of which was the trading; that the Control of Timber Order operated to frustrate the trading agreed on; and that, consequently, the option to purchase lapsed since it only arose in the event of the agreement being terminated by notice under cl. 5. Decision of the Second Division of the Court of Session (sub. nom. James B. Fraser & Co., Ld. v. Denny, Mott & Dickson, Ld.), 1943, S.C. 293, affirmed, APPEAL from the Court of Session. The facts, stated by Viscount Simon L.C. and Lord Wright, were as follows: The respondents carried on business as timber merchants and saw millers and the appellants carried * Present—Viscount Stmon L.C., Lorp Tuanxerton, Lorp Mac- MILLAN, Lorp Wricut and Loxp Porter.266 HL. (Sc) 1944 Denny, Morr & Dickson, ‘Lo. v Janes B. Fraser & Co., Lp. HOUSE OF LORDS [1944] on business as timber merchants and importers. On July 10 and 25, 1929, the parties entered into a minute of agreement which narrated : ‘‘ Whereas it has been arranged between the “parties that the [respondents] shall purchase all their supplies “ of red and white pine wood from the [appellants] and that “the [respondents] shall let to the [appellants] the timber “yard at Grangemouth known as Drumalbyn Timber Yard “with an option to the [appellants] to purchase or take on “Jong lease the said timber yard upon certain terms “and conditions.” By cl. 1: “ The [respondents] shall be “bound and hereby bind themselves to buy from the “ [appellants] all their supply of red and white pine wood “(except wood required for their case-making factories) and “ the {appellants] shall be bound and hereby bind and oblige “ themselves to supply the [respondents] with the said wood so far as their stocks will permit and subject to all purchases being of fair specification of lengths as imported. The said “wood shall be available to the [respondents] at the ground “at Drumalbyn Timber Yard, Grangemouth, or in the yard “of the [respondents] at Phoenix Saw Mills, Port Dundas, “Glasgow... .” Clause 2 fixed the price of the timber on a sliding scale based on the landed cost with an addition thereto of handling and other charges together with 2} per cent. added to the total cost as guaranteed profit. Clause 3 regulated payment. Clause 4, after placing an obligation on the respondents to use their best endeavours to sell the wood, declared that they should have no control over the buying or selling of the appellants, that the contract should in no way limit the appellants’ right to sell to others, and that nothing in the agreement should override or otherwise affect any arrangements entered or to be entered into by the appellants or any conditions imposed on them as to price or otherwise in regard to the purchase or disposal thereof. By Cl. 5: “This agreement shall commence as at May 28, “‘tg29, and may be terminated at the instance of the {appellants} by their giving at least 12, calendar months’ “notice in writing by registered letter prior to the date on “ which the termination shall take place, and the [respondents] “shall have the right to terminate the agreement at their “instance on giving 3 years’ notice of tetmination in writing “by registered letter of the date on which the termination is “to take place.” By cl. “To enable the aforesaid “ trading agreement to be carried out the [respondents] haveA.C. AND PRIVY COUNCIL. “agreed to let to the [appellants] and the [appellants] have “« agreed to take on let from the [respondents] the ground at “ Fouldubs, Grangemouth, presently used as a timber yard “by the [respondents] and known as Drumalbyn Timber Yard . . . which let shall continue during the period of the “« aforesaid trading agreement.” By cl. 7: “‘ In consideration “of the foresaid let the [appellants] shall not be bound to “pay any rent to the [respondents] but they shall be bound “to pay and free and relieve the [respondents] of ” the annual feu-duty, the whole ratés and taxes and all water, gas and other rates and all fire insurance. They were to keep all the buildings in good tenantable condition and repair and to have “‘ the right to alter the railway line siding to suit their “trade and to lay additional line sidings.” By cl. 8: “In the “event of the foregoing trading agreement being terminated “by either party as aforesaid the [appellants] shall have the “right as at the date of termination of said agreement to “purchase the said ground and all buildings and erections “thereon at a price of 4,000/. in exchange for which price the “ [respondents] shall grant to the [appellants] or their nominees “‘a valid and marketable title and clear searches. Alterna- “tively the [appellants] shall have the right to take on lease “from the [respondents] the said ground and_ buildings “and railway sidings thereon at an annual rent of 500/. per “annum...” By cl. g: “It is understood that the lease “« of the premises as above provided for shall be for a period “of 5 years from and after the date of the termination of the “trading agreement as aforesaid, and shall be renewable in “ the option of the [appellants] for further periods of 5 years “‘ from time to time thereafter up to a total of 99 years in all “from May 28, 1929.” On the outbreak of war in September, 1939, the Control of Timber (No. 1) Order, made by the Minister of Supply by virtue of the Defence (General) Regula- tions, came into force restricting transactions in red and white pine wood of the type referred to in the agreement. One effect of the order was to render it unlawful for the appellants to supply the respondents with wood at the price stipulated in the agreement. The Control of Timber (No. 4) Order, 1939, which came into force on September 16, 1939, and later orders altogether prevented the import of timber as contemplated in the agreement. The appellants’ stocks of timber were exhausted about the end of September, 1939, and from that date it was impossible to supply further timber to the respondents. In 267 H. L. (Se.) 1944 DENNY, Mort & Dickson, Lo. v. James B. Fraser & Co., Lp,HOUSE OF LORDS (1944] this action the appellants “admitted that the effect of the “government orders controlling transactions in timber was “wholly to prevent the current operation of the agreement “in so far as it related to the supply of timber by the “‘ [appellants] to the [respondents].” On July 17, 1941, the appellants, by letter of that date, purported, under cl. 5 of the agreement, to terminate it by giving 12 calendar months’ notice and to exercise at the same time the option under cl. 8 to purchase the timber yard at the agreed price of 4,000/. In an action brought by the respondents to determine the rights of the parties, the Lord Ordinary, Lord Robertson, held (x.) that the agreement was composite, comprising two distinct and severable parts, a “trading” and a “ purchase ” agreement ; (2.) that the former had been terminated by frustration ; but (3.) that the ‘‘ purchase ” agreement remained operative and that the option was validly exercised. The Second Division of the Court of Session (the Lord Justice Clerk, Lord Mackay, Lord Wark and Lord Jamieson) held that the effect of the orders was to render the trading illegal for an indefinite period and that qua trading the contract was frustrated. They further held (Lord Jamieson dissenting) that the agreement formed a single contract and had been terminated by frustration. The appellants appealed to the House of Lords. C. Mackintosh K.C. (of the Scottish Bar) and A. J. Hodgson for the appellants, The contract was one and indivisible, but it had two quite separate objects, one of which, the trading object, may have been frustrated, but the other of which, the purchase of the timber yard, was not affected by circum- stances arising out of the war. This is a composite contract and the purchase of the timber yard is as much a main object of it as the trading. The contract looks to the course of trading and also beyond the trading. The doctrine of frustra- tion has no application where the supervening event is destructive only of some, and not of all, the objects or purposes of the contract, and in this case part of the contract survives and every part of it which can be performed must be performed. The provisions as to the sale of the timber yard were not in furtherance of the trading between the parties. On the contrary they were to take effect when the trading finished (see cl. 8 and 9). Also, by: cl. 1, the appellants were entitled to deliver timber at the Phoenix Saw Mills, and,A.C. AND PRIVY COUNCIL. accordingly, the sale and purchase of the timber must be treated as independent of the terms dealing with the lease or sale of the timber yard. Whether a contract such as this remains alive when performance of part of it has become impossible is a question of degree. To keep it alive the part that remains must not be trivial. The foundation of the contract must be found. Here the trading provisions are not the essence of the contract. They are really subsidiary to the provision of the option, which was the substantial purpose of the agreement, so that the contract survives as a whole. Further, the doctrine of frustration cannot apply, since there was no agreement to do a specific thing at a fixed price or on a fixed date and no provision for anything in the nature of continuous trading. The parties took the risk of minor interruptions and any interruptions which did not go to the root of the contract. Here there was no such interruption. This is clear from the terms of the agreement. Clause 2 showed an intention that the contract should be a long-term one, and that even a considerable interruption of supply would not bring it to an end, Clause 7 showed an intention that the option to purchase should not be readily terminated. Clause 4 covered the very matter now in question, indicating that government control should not defeat or frustrate the contract. They referred to Dahl v. Nelson Donkin & Co. (1) ; Leiston Gas Co. v. Leiston-cum-Sizewell Urban District Council (2); Distingion Hematite Iron Co., Ld. v. Possehl & Co. (3); F. A. Tamplin Steamship Co., Ld. v. Anglo-Mexican Petroleum Products, Ld. (4) ; Bank Line, Ld. v. Arthur Capel & Co. (5) ; Larrinaga & Co., Ld. v. Société Franco-Américaine de Phosphates de Médula (6) ; James Scott & Sons, La. v. Del Sel (7); Joseph Constantine Steamship Line, Ld. v. Imperial Smelting Cor- poration, Ld. (8); Heyman v. Darwins Ld. (9).] Thomson K.C. and Philip (both of the Scottish Bar) for the respondents were not called on to argue. The House took time for consideration. May 19. Viscount Simon L.C.: My Lords, this appeal raises once again the question, which has been so often (x) (1881) 6 App. Cas. 38, 59. (6) (1923) 92 L. J (K. B.) 455. (2) [1916] 2 K. B. 428. (7) 1923 S.C. (H. L.) 37. (3) [916] 1 K. B. 8x1. (8) [1942] A. C. 154, 163. (4) [1916] 2 A. C. 397, 403. (9) [r942] A.C. 356. (5) [r9r9] A. C. 435- 269 HLL, (Sc.) 1944 Dewy, Morr & Dickson, Lp. v. Jamzs B. Fraser & Co., Lo.270 HL. (6c.) 1944 DENNy, Morr & Dicxson, Lp. v. Janes B. Fraser & Co., Lp. ‘Viscount Simon Le. HOUSE OF LORDS [1944] discussed and decided in the “ frustration” cases arising out of the last war and now also out' of the present war, whether a particular contract entered into before the war has been brought to a premature conclusion by war regulations which render illegal, and, therefore, prevent, the due performance of some of the obligations or the due enjoyment of some of the rights under the contract. The decision in the present case depends on the application of principles already well settled and, in my view, the conclusion reached by the majority of the Inner House, reversing that of the late Lord Robertson, is correct. Of the various opinions of the majority, that of Lord Wark expresses with great clarity the course of reasoning which has led me to the view that the appeal should be dismissed. The option of purchase conferred by cl. 8 on the appellants only arises “ in the event of the foregoing trading agreement “being terminated by either party as aforesaid” (ie, by notice under cl. 5). If, therefore, the agreement had already been terminated by intervening events such as the war regulations above referred to, and its further performance had been frustrated by supervening illegality, the basis on which the option might have been exercised by the appellants had ceased to exist. The termination by either party to which cl. 8 refers is the termination of the agreement when it is alive and operative, but the notice of termination in the respondents’ letter of July 17 refers to an agreement which has already been brought to an end by supervening events. This view of the case really concludes the matter, but I should mention two arguments which have been urged by the appellants against the inevitable result. The first is that the contract is, as the Lord Ordinary described it, “ of a composite “character,” with the result that the. part dealing with the sale and purchase of timber might be terminated by frustration without the part dealing with the option to buy the land being brought to an end. This contention breaks down on an examination of the terms of the agreement. It is one agree- ment, and, as already pointed out, the exercise of the option as to the land depends on the termination of the purchase agreement arising by notice from either party. The other contention was that the substantial purpose of the whole agreement was to provide the option, and that the trading clauses were quite subsidiary, so that the contract survived as a whole and advantage could still be taken of the option clause.A.C. AND PRIVY COUNCIL. It's, undoubtedly, true that the principles on which frustration depends require the contract to be examined as a whole, and it may be that the supervening impossibility of fulfilling some minute provision may not be regarded as going to the length of preventing substantial performance of the contract as a whole. If Leiston Gas Co. v. Leiston-cum-Sizewell Urban District Council (1) was rightly decided, that case would furnish an instance, but, on the facts of the present case, there is no room for the application of such an argument. The preamble of the contract indicates, and the language of most of its clauses shows, that the trading in timber was the main object of the contract. This trading was frustrated and the opportunity for exercising the option thereupon lapsed. I move that the decision of the Court of Session be affirmed and that the appeal be dismissed with costs. Lorp THANKERTON, My Lords, I agree with the opinion of my noble and learned friend on the woolsack, and I have little to add. Counsel for the appellants found himself unable to support the view taken by the Lord Ordinary, that there were in substance two separable agreements. Counsel was rightly impressed by the opening words of cl. 8 of the agreement, which make the termination of the trading agreement under cl. 5 a condition precedent to the arising of the option to purchase the timber yard, but it seems to me that it is equally difficult—for the same reason—for the appellants to maintain that the provisions of cl. 8 and 9 were not ancillary to the trading agreement. If so, it only remains to consider whether, in the words of Lord Loreburn in F. A. Tamplin Steamship Co., Ld. v. Anglo-Mexican Petroleum Products Co.,Ld, (2) the discontinuance of thetrading agreement admittedly caused in the present case was such as to upset altogether the purpose of the trading agreement, and I agree with my noble and learned friend that the purpose of the trading agreement was so upset, and that the opportunity for exercising the option lapsed. I agree with the proposed motion, I may add that it is not necessary in this appeal to consider the consequences arising out of the defeat of the contract, as to which it may be suggested that the law of Scotland and the law of England are not identical. Lorp Macmitran. My Lords, the principle of contract (x) [1916] 2 K. B. 428, (2) [1916] 2 A. C. 397, 403. 275 HL. (Se) 1944 DENNY, Morr & Dickson, Lo. v. Janes B. Fraser & Co., Lb. Viscount Simon Lc.2972 H. L. (Sc.) 1944 Denny, Mort & Dickson, D. v. Janes B. Fraser & Co., Lo. Lord ‘Macmillan, HOUSE OF LORDS 1944] law which has come to be known as the doctrine of frustration and which has recently in England been accorded statutory recognition, is common to the jurisprudence alike of Scotland and of England, although the leading cases are to be found in the English law reports. It is a principle so inherently just as inevitably to find a place in any civilized system of law. The manner in which it has developed in order to meet the problems arising from the disturbances of business due to world wars is a tribute to the progressive adaptability of the common law. In the works of the Scottish institutional writers the matter receives only rudimentary treatment. In Bell’s Principles of the Law of Scotland it is not until after the death of the original author that, in the editions which we owe to Sheriff Guthrie, the doctrine begins to assume its modern shape, and is well stated as follows: “ When by the “nature of the contract its performance depends on the “‘ existence of a particular thing or state of things, the failure “or destruction of that thing or state of things, without “default on either side, liberates both parties.’ The earlier cases both in England and in Scotland are mostly concerned with the consequences of the perishing of the thing on whose continued existence the contract depended for its fulfilment, but many of the recent cases have arisen from the supervention of emergency legislation rendering the implement of the contract illegal. It is plain that a contract to do what it has become illegal to do cannot be legally enforceable. There cannot be default in not doing what the law forbids to be done. The present case belongs to the latter category. It seems to me a very clear one for the application of the principle I have just enunciated. Here is an agreement between two parties for carrying on dealings in imported timber. By emergency legislation the importation of timber has been rendered illegal. Neither party can be said to be in default. The further fulfilment of their mutual obligations has been brought to an abrupt stop by an irresistible extraneous cause for which neither party is responsible. But it has been suggested, and the Lord Ordinary and Lord Jamieson have taken the view, that one of the stipulations of the contract is severable from the rest and remains enforceable, inasmuch as its fulfilment would involve no illegality. This contention is, in my opinion, untenable. It is true that the respondents could, without infringing the emergency legislation sell or letA.C. AND PRIVY COUNCIL. their Grangemouth timber yard to the appellants on the terms stated in the agreement, but the right to require such a sale or lease is conferred on the appellants only as a con- sequence of one or other of the parties having voluntarily taken advantage of the right to terminate the agreement on notice. The operation of the agreement having been com- pulsorily terminated, neither party can thereafter terminate it voluntarily. You cannot slay the slain. I would only add that, in judging whether a contract has been frustrated, the contract must be looked at as a whole. The question is whether its purpose as gathered from its terms has been defeated. A contract whose purpose has been defeated may contain subsidiary stipulations which it would still be possible and lawful to fulfil, but to segregate and enforce such a stipulation would be to do something which the parties never intended, It cannot be suggested with any reason in the present case that the tespondents would have conferred on the appellants an option to purchase or take on lease the respondents’ timber yard independently of the trading arrange- ments into which they had agreed to enter. The consideration for the option was the fulfilment of those arrangements and there was no severable consideration. The House is not concerned in this appeal with any question as to the reliefs consequent on frustration as to which the law of Scotland may differ from the law of England. I agree with your Lordships that the appeal should be dismissed and’ the interlocutor of the Second Division affirmed. Lorp Wricur (read by Lorp Porter). My Lords, frus- tration of a contract, which, though as an expression criticized in the past, has now received legislative sanction in a recent Act—the Law Reform (Frustrated Contracts) Act, 1943— has been described by Professor Winfield, at p. 235, in the x1th edition of Pollock on Contracts which he has edited in the following terms: “‘ After the formation of a contract, “certain sets of circumstances arise which, owing to the fault “of neither party, render fulfilment of the contract by one “‘or both of the parties impossible in any sense or mode “contemplated by them. These sets of circumstances have ‘been more or less defined by the courts and are held by ‘“ them to release both parties from any further obligation to “fulfil the contract.” The rule has sometimes been described. as an exception to the general principle that parties must A.C. 1944. 3 w 273 H. L. (Sc.) 1944 Denny, Morr & Dickson, Lb. v. Janes B. Fraser & Co., Lp. Lord ‘Macmillan274 H.L. (Se.) 1944 DEnny, Mort & Dickson, Tose James B. Fraser & Co., Lo, HOUSE OF LORDS [1944] perform their obligations or pay damages for breach of contract. I should prefer to describe it as a substantive and particular rule which the common law has evolved. Where it applies there is no breach of contract. What happens is that the contract is held on its true construction not to apply at all from the time when the frustrating circumstances supervene. From that moment there is no longer any obligation as to future performance, though up to that moment obligations which have accrued remain in force. The rule finds its simplest and earliest exemplification where a contract for personal service is frustrated by the death of the contractor during the period of covenanted service. For breaches of contract before his death, his representatives may be held liable, but no one has ever heard of them being held liable in damages for the dead man’s failure to perform his contract as from the date of his death. A rule of this character obviously admits of almost indefinite exemplifications, as numerous and diverse as are the possibilities of the performance of a contract being interrupted by a vital change of circumstances. The law, however, has examined a great variety of cases in which it has held or refused to hold that a contract is nullified as to its future by the impact of the frustrating event. The applica- tion of the general principle must depend on the circumstances of the ‘particular case. No detailed absolute rules can be stated. A certain elasticity is essential. The topic has been repeatedly elucidated by numerous decisions of this House. Thus in 1929 in the Bank Line, Ld. v. Arthur Capel & Co. (x) Lord Finlay L.C. felt able to say that the law of the subject was well settled. He referred to the general principle, not particular applications, It is now I think well settled that where there is frustration a dissolution of a contract occurs automatically. It does not depend, as does rescission of a contract on the ground of repudiation or breach, on the choice or election of either party. It depends on what actually has happened on its effect on the possibility of performing the contract. Where, as generally happens, and actually happened in the present, case, one party claims that there has been frustration and the other party contests it, the court decides the issue and decides it ex post facto on the actual circumstances of the case. The data for decision are, on the one hand, the terms and construction of the contract, read injjthe light of the then existing circum- (2) [toro] A. C. 435, 44%A. C. AND PRIVY COUNCIL. stances, and on the other hand the events which have occurred. It is the court which has to decide what is the true position between the parties. The decision is as Lord Sumner said in Hirji Mulji v. Cheong Yue Steamship Co.,Ld. (x), “irrespective of the individuals concerned, their temperaments “and failings, their interest and circumstances.” The court has formulated the doctrine by virtue of its inherent juris- diction, just as it has developed the rules of liability for negligence, or for the restitution or repayment of money where otherwise there would be unjust enrichment. I find the theory of the basis of the rule in Lord ‘Sumner’s pregnant statement (loc. cit.).that the doctrine of frustration is really a device by which the rules as to absolute contracts are reconciled with the special exceptions which justice demands. Though it has been constantly said by high authority, including Lord Sumner, that the explanation of the rule is to be found in the theory that it depends on an implied condition of the contract, that is really no explanation. It only pushes back the problem a single stage. It leaves the question what is the reason for implying a term. Nor can I reconcile that theory with the view that the result does not depend on what the parties might, or would as hard bargainers, have agreed. The doctrine is invented by the court in order to supplement the defects of the actual contract. The parties did not anticipate fully and completely, if at all, or provide for what actually happened. It is not possible, to my mind, to say that, if they had thought of it, they would have said: “Well, if that “happens, all is over between us.” On the contrary, they would almost certainly on the one side or the other have sought to introduce reservations or qualifications or compensations. As to that the court cannot guess. What it can say is that the contract either binds or does not bind. It is a separate matter whether some ancillary relief should be given, as for a failure of consideration consequent on the frustration, as was held to be proper in Fibrosa Spolka Aheyjna v. Fairbairn Lawson Combe Barbour Ld. (2). To my mind, the theory of the implied condition is not really con- sistent with the true theory of frustration. It has never been acted on by the court as a ground of decision, but is merely stated as a theoretical explanation. I only refer to the point here because it seems to me that the conclusions of both Lord Robertson and Lord Jamieson were affected to some (1) [1926] A. C. 497, 510. (2) [1943] A. C. 32. / ae 275, H.L. (Se) 1944 Denny, Morr & Dicxson, Lb. v Janus B. Fraser & Co., Lp. Lord Wright.276 HOUSE OF LORDS (1944) H.L. (Sc.) extent by reflecting on what the parties as individuals might 14g OF would have decided if they had thought of the possible — frustrating cause. I must admit that the view I have stated PzNNY, is somewhat heretical, but the general nature of the doctrine Dicxsox, of frustration has given rise to many irreconcilable explanations. ‘> In the Bank Line case (rt) Lord Sumner made an interesting ee anthology of some of them. In Hirji Mulji’s case (2), about ‘Co, Lp. seven years later, his analysis is more exact and penetrating, sects, Ut he again (3) emphasizes that, when frustration occurs, it —— is automatic, and that its legal effect depends not on the intention of the parties or even on their knowledge as to the event, but on its occurrence in such circumstances as to show it to be inconsistent with the further prosecution of the adventure. I mention these two aspects of the principle here because they are important for the decision of the present case. The event is something which happens in the world of fact, and has to be found as a fact by the judge. Its effect on the contract depends on the meaning of the contract, which is matter of law. Whether there is frustration or not in any case depends on the view taken of the event and of its relation to the express contract by “‘ informed and experienced minds.” What the event was in the present case is not in controversy. It is possible to distinguish for some purposes at least three separate matters dealt with by the contract. First, the provisions of the agreement which deal with the trading in timber, that is, the purchase and sale of it; secondly, the provisions which deal with the letting of the yard while the trading is going on; and, thirdly, the provisions which deal with the option to purchase the yard or take it on long lease which may come into effect when the trading operations cease. The stoppage of trading was in fact due to general orders of the Minister of Supply, acting under his powers under the Defence General Regulations, made after the outbreak of war. The judges in the courts below have held (Lord Jamieson not dissenting) that these orders had the effect of rendering illegal and impossible for an indefinite time the further conduct of the trading operators. If, therefore, the provisions as to trading stood by themselves, it could scarcely have been questioned that the trading adventure was frus- trated. Some objections to this conclusion were overruled in the court below and were scarcely relied on before this House, (x) [1919] A. C. 435- (3) [1926] A. C. 497, 509. (2) [1926] A. C. 497, 510.