The Doctrine of "Frustration"

Author(s): Roger Kiley

Source: American Bar Association Journal , DECEMBER 1960, Vol. 46, No. 12 (DECEMBER
1960), pp. 1292-1294
Published by: American Bar Association

Stable URL: https://www.jstor.org/stable/25721374

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The Doctrine of "Frustration
The doctrine of frustration, like many other aspects of the law of
contracts, is derived from Roman law. Justice Kiley traces the doc
trine from its Roman antecedents through English law to its recent
application in an Illinois decision.

by Roger Kiley Justice of the Appellate Court of Illinois (First District)

THE USE OF the doctrine of frustra is not a long way for law, and an ex of Krell v. Henry was decided. The
tion of contracts was approved in tension of the doctrine of frustration court thought if Krell and Henry had
April, 1959, for the first time in which decided the English case was foreseen the cancellation of the King's
Illinois. Like so much of our jurispru used in April, 1959, by the Appellate procession, they would not have en
dence, the doctrine had its origin in a Court of Illinois (First District) to re tered the "agreement". It found that
principle of Roman law, was applied solve the union issue.2 the procession was the foundation of
first in England, and crossed the Atlan The origin of the principle from the contract. The suite was rented for
tic to become part of American law. which the frustration doctrine devel the two days of the procession after
As "frustration", the doctrine in the oped is very old. It was part of the Krell had publicly advertised his suite
United States has not been widely Roman contract law which extinguished for rent for viewing the procession.
known or discussed. Its growth in this obligations of innocent parties where The procession went to the root of the
country seems to have been spasmodic the "thing is destroyed without the agreement, and while the agreement
rather than gradual. It has lain more debtor's act or default", and the con did not state that it was the foundation,
or less dormant for long periods and tract purpose has "ceased to be attain the court implied from circumstances
has been brought to life only in times able".8 It was applied in Roman times, that it was. The court said the English
of unusual stress to work out justice in for instance, to save, from liability, a law extended the Roman principle be
contract relationships. man who promised to deliver a slave yond cases where the subject matter of
The doctrine was named in England by a certain day if the slave died be the contract was destroyed rendering
in a rent case and entered Illinois in a fore delivery.4 Centuries later, in Eng performance impossible, to cases where
labor dispute. In 1903 an Englishman land, a man was excused from payment the impossibility of performance fol
named Krell leased his Pall Mall apart of damages for failure to deliver a lows the cessation of an "express con
ment in London to C. S. Henry to be horse because the horse died before dition or state of things" essential to
used for viewing a royal procession. date of delivery.5 Also, an English the contract. The court's decision ex
The King's sickness prevented the pro author's estate was said to be absolved tended the principle further to cover
cession, and Henry refused to pay from payment of damages if the author "implied" conditions or states of things.
Krell the balance of the rent. Krell died before writing a book he had The old principle was applied but a
sued, but the English court held against agreed to write.6 The principle could new name was added by the court: the
be used to protect from penalty of
him on the ground that the purpose of
the contract between them was "frus damages a painter who was blinded 1. Krell v. Henry [1903] 2 K.B. 740.
trated".! before completing the picture he had 2. Olson v. Carbonara, 21 III. App. 2d 69, 157
N.E. 2d 273 (1959), leave to appeal denied, 17
The Krell-Henry case in England in agreed to paint.7 And promoters of a 111. 2d 147 (1959).
3. Sohm, Institutes of Roman Law 439 (3d
1903 may seem a long way from a concert were saved from damages for ed. 1907).
controversy in 1958 between Anthony failure to present a concert in Surrey, 4. Id. at 440.
Conforti and Peter Carbonara and their 5. Williams v. Lloyd, 85 E.R. 95.
England, because the Surrey Gardens
6. Polluck, C. B., in Hall v. Wright, 120 E.R.
adherents in Chicago's Local 1 of the Music Hall burned down.8 695, 706 (1859).
Bakery and Confectionary Workers In It was forty years after this Music 7. Crompton, J., in Hall v. Wright, 120 E.R.
688, 690 (1858).
ternational Union of America. But it Hall case that the Pall Mall suite case 8. Taylor v. Caldwell, 122 E.R. 313 (1863).

1292 American Bar Association Journal

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 The Doctrine of "Frustration"

object of the contract was "frustrated".9 to conduct saloons and to attain the
Legal writers took this psychiatric lease purposes despite the law. At any
flavored term from the case and gave rate, the prohibition-lease cases exem
jurisprudence the refreshing "doctrine plified the need for the frustration doc
of frustration". trine.
At its 1932 meeting, the American
Doctrine in America Law Institute adopted Section 288 of
Boosted in World War I the Restatement of the Law of Con
tracts, drafted by "Reporter" Samuel
The outbreak of World War I pro Williston. This section provides that
vided the first legal crisis which gave
"where the assumed possibility of a
the frustration doctrine a boost in desired object or effect to be attained
America where it had been previously by either party" forms the basis on
little known or used. International which both parties enter a contract,
trade was interrupted, transoceanic "and this object or effect is or surely
ships were sunk or seized, and embar will be frustrated, a promisor who is
goes were placed on shipment of goods. without fault in causing frustration,
How could anyone be held to perform and who is harmed thereby, is dis Roger J. Kiley was appointed to
an obligation to deliver goods across charged from the duty of performing the Appellate Court of Illinois in
oceans under these circumstances? Per his promise unless a contrary intention 1941 and has served continuously
sons with these obligations were at the appears".1*" The adoption of frustra since then. He is now the Chief
mercy of conditions which they did not tion by the Institute gave the doctrine Justice of the Court. He is a gradu
foresee and did not bring about. The prestige and new authority in its de ate of the Notre Dame Law School.
principles from which the frustration velopment in the United States.
doctrine grew had already rescued, The next challenge after the prohibi wanted the terms of the pre-enlistment
from impossible or unjust burdens, tion cases to reach "frustration" came
contract to govern the new arrange
contracting parties, or estates, where with the tense period ushered in by the
ment. Autry sued for a declaration of
things had been destroyed or persons attack at Pearl Harbor. The West Coast
his rights and obligations. He lost in
had died or become incapacitated and was jittery, and there, more than on
the trial court and on appeal he pre
the purposes of the contracts made un any other American coast line, nightly vailed in an opinion which found frus
attainable. It was but another step for blackouts were important. Many per
tration inapplicable but held that he
ward for frustration to changed condi sons and firms were depending on elec
tions which could not be blamed on the was nevertheless excused from perform
tric lights to advertise their wares and ance under the premilitary contract
party seeking relief but which placed had contracts with power companies terms.1"' The court decided that his
beyond reach the purpose of the con for the electricity. These advertisers
military service had made getting on
tract. Some courts took the step and and the power companies could not and off the horse more difficult for
applied the doctrine to absolve the un reasonably have anticipated Pearl Har
Autry, and that while in service his
justly burdened shippers from liability bor, were not responsible for the black
for breach of contract.10 These courts popularity had declined and the dollar
out regulations, and could not suspend had devaluated. These factors made up
have been criticized for making this them. They were trapped in their con
a case of impossibility of performance
extension instead of applying the tradi tracts. A California court, however,
tional rule of impossibility of perform found the way out through "frustra 9. The word "frustrated" appears to have
ance.11 In any event the war induced tion" because the peace conditions the been first used in this context in a dissent by
an extension of the doctrine. Sir Roland Vaughn Williams in Nickoll &
parties assumed would continue to Knight v. Ashton, Edridge & Co. [1901] 2 K.B.
126, an admiralty case discussed in Krell v.
Then came Prohibition. Saloon keep exist, gave way, and the dark nights Henry. Sir Roland said of the event destroying
ers were carrying leases which sudden came.14 the contract subject matter, "The voyage was
frustrated."
ly became meaningless?at least in any 10. E.g., Nitro Powder Co. v. Agency of
Canadian Car & Foundry Co., 233 N. Y. 294, 135
legal sense. Law-abiding dispensers Contract Frustrated N.E. 507 (1922); see also Leonard v. Autocar
of the soothing suds and companion Sales & Service Co., 392 111. 182, 64 N.E. 2d 477
comforts were out of business and by Military Service (1946), cert, denied, 327 U. S. 804 (1946).
11. L. N. Jackson & Co. v. Royal Norwegian
faced with financial failure. In this The uphill course of the doctrine has Government, 177 F. 2d 694 (2d Cir. 1949), cert,
denied, 339 U. S. 914 (1950); Anderson, Frustra
climate of changed conditions some not been without difficulties. For in tion of Contract?A Rejected Doctrine, 3 De
Paul L. Rev. 1, 3 (1953).
courts used the principles underlying stance, Gene Autry was thrown off a 12. E.g., Levy v. Johnston & Hunt, 224 111.
the frustration doctrine to provide claim of frustration of his contract App. 300 (1922). See also Justice Traynor's ref
erence to these cases in Lloyd v. Murphy, 25
saloon keepers with relief from the with Republic Productions in 1947. Cal. 2d 48, 153 P. 2d 47, 50 (1944).
burdens of lease obligations where the He was under an obligation to make 13. Restatement, Contracts, Section 288
(1932).
lease purpose was unattainable for rea cowboy pictures but enlisted in the 14. Twentieth Century Lines, Inc. v. Good
sons over which they had no control.12 military service. After he was dis man, 64 Cal. App. 2d 938, 149 P. 2d 88 (1944).
15. Autry v. Republic Productions, Inc., 30
Some saloon keepers found it possible charged from the service, Republic Cal. 2d 144, 180 P. 2d 888 (1947).

December, 1960 Vol. 46 1293

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The Doctrine of "Frustration"

in the "sense of impracticability" be ter its expulsion from the A.F.L. in The Conforti and Olson V. Carbonara
cause of the substantially greater bur 1953.22 The Bakery & Confectionery suits followed. The issue was whether
den performance would require. Other Workers International Union of Amer the charter from the B. & C. Inter
courts might have found it more feas ica (B. & C. International) was faced national bound the Carbonara group
ible to apply the frustration principle with it in 1958 after its expulsion from to "allegiance".
instead of giving "impossible" a more the A.F.L.-C.I.O. for corruption of its The Appellate Court approved the
liberal meaning. officers. A New York court rebuffed the chancellor's application of the frustra
The doctrine was making itself felt, B. & C. International's attempt in 1958 tion doctrine to free the Carbonara
in argument if not application, in all to prevent a local from disaffiliating.23 forces from the B. & C. International
directions. It was ready for the legal "A violation of the trust so reposed in charter: the local's membership blanks,
struggles brewing in a crucial period labor leaders is in and of itself suffi the International's Constitution and
for the labor movement, the struggles cient justification for a local union to By-Laws, and the collective bargaining
which led eventually to the Conforti call it quits."24 And a California local agreements all referred to the affilia
Carbonara contest in Chicago in 1959 of the American Bakery Workers Union tion with the A.F.L.-C.I.O. The Inter
and to the decisions which became the in 1958 showed that its charter pur national's affiliation gave the local
foundation of the doctrine of frustra poses were frustrated because its parent power and prestige, legislative influence
tion in Illinois. union had lost its place in the A.F.L. and a national forum to express its
The C.I.O. in November, 1949, ex C.I.O.25 labor grievances. As a result, the court
found that the local must have consid
pelled the United Electrical, Radio and
Machine Workers of America (U.E.) Illinois Soil Conditioned ered the affiliation implicit in "all the
contract terms" and that the continued
because it was dominated by Commu for the Doctrine
nist influences. That stirred up a hor The frustration doctrine had been affiliation of the International with
net's nest among U.E.'s locals, in many knocking at the door in Illinois all this A.F.L.-C.I.O. was an implied condition
of which majorities of members re time. It was urged in the Supreme of the charter, essential to the attain
volted and walked off with local assets Court in 1946.26 The Court recognized ment of the charter purposes. The
to form new organizations and new the doctrine as an extension of the ex changed conditions brought about by
affiliations. The result was a flurry of ception that "in contracts to whose per the expulsion of the International frus
lawsuits especially in New York and formance the continued existence of a trated the local's charter, and it could
New Jersey. U.E. went to court to hold particular person or thing is necessary, not have been anticipated "or provided
its locals in line, to recover local treas a condition is always implied that the against if anticipated". The disaffilia
uries and keep them under U.E. con death or destruction of that person or tion of the Carbonara group was there
trol. The locals won most of the law thing shall excuse performance."27 The fore "justified by this frustration".
suits, and the courts stated the reasons Appellate Court of Illinois (First Dis Olson and Conforti sought leave to
for the decisions in various ways: "un trict) recognized and discussed the appeal from the decision to the Su
clean hands",16 "breach of an implied doctrine in 1956 but did not apply it.28 preme Court of Illinois. At its Septem
condition",17 and "unenforceable The doctrine was not rejected in those ber Term, 1959, the Supreme Court
denied leave.30
rights".18 Running through all the de cases as has been claimed.29 The facts
cisions, however, was the thread of the Frustration has come to Illinois. Its
did not warrant its application. In any
frustration doctrine which a New York event, Illinois was conditioned and persistent past gives promise of a per
manent residence in our state.
court had applied in favor of the local ready for the legal tug-of-war between
in the leading case of Clark v. Fitz Local 1 and its B. & C. parent for 16. Fitzgerald v. Riverside Labor Hall, 27
L.R.R.M. 2366 (N. Y. Sup. Ct. 1951); Kralstein
gerald in December, 1949.19 This court which sides were chosen in Chicago. v. Sorchinski, 41 L.R.R.M. 2528 (N. J. Super.
decided the local could not have fore This happened early in 1958 when 1858); Crawford v. Newman, 174 N.Y.S. 2d 667,
aff'd, 174 N.Y.S. 2d 881 (1958).
seen the expulsion of U.E. from the the members of Local 1 assembled for 17. Duris v. Iozzi, 6 N. J. Super. 530, 70 A.
2d 793 (1949).
C.I.O., and that relationship, being an important meeting. The main busi 18. Local 1140 v. United Elec, Radio & Mach.
essential to the purposes of the local Workers, 232 Minn. 217, 45 N.W. 2d 408 (1950).
ness at the meeting was the question of 19. 93 N.Y.S. 2d 769 (1949).
charters, upon its rupture those pur disaffiliation from the International be 20. Local 1140 v. United Elec, Radio & Mach.
Workers, 232 Minn. 217, 45 N.W. 2d 408 (1950).
poses were frustrated and the charters cause of its expulsion from A.F.L. 21. Bozeman v. Titzmaurice, 107 N.E. 2d 627
(Ohio App. 1951).
not binding. No point had been made, C.I.O. for refusing to obey an order 22. Overton-Bey v. Jacobs, 131 N.Y.S. 2d 31
even if it could have been made, that not to re-elect to office International (1954).
23. Crawford v. Newman, 174 N.Y.S. 2d 667,
the local was to blame for the change officers whom the Grievance Commit aff'd, 174 N.Y.S. 2d 881 (1958).
24. Crawford v. Newman, 175 N.Y.S. 2d 903
of conditions brought about by the tee had found guilty of corruption. The (1958).
25. King v. American Bakery Workers Union,
expulsion of U.E. resolution of disaffiliation carried by 41 L.R.R.M. 2617 (1958).
The frustration doctrine, expressed an overwhelming vote. Carbonara led 26. Leonard v. Autocar Sales & Service Co.,
392 111. 182, 64 N.E. 2d 477 (1946), cert, denied,
or implied, dogged the steps of U.E. the majority out of the B. & C. Inter 327 U. S. 804 (1946).
27. 392 111. at 187.
as its troubles moved west to Minne national into the American Bakery and 28. Warshawsky v. American Automotive
sota in 195020 and Ohio in 1951.21 Confectionary Workers International, Prod. Co., 12 111. App. 2d 178, 138 N.E. 2d 816
(1957).
It haunted the International Long the new affiliate of the A.F.L.-C.I.O. 29. Anderson, Frustration of Contract?A Re
jected Doctrine, 3 De Paul L. Rev. 1, 16 (1953).
shoremen's Association in the East af The assets of Local 1 went with them. 30. Olson v. Carbonara, 17 111. 2d 147 (1959).

1294 American Bar Association Journal

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