Professional Documents
Culture Documents
IMPOSSIBILITY OF
PERFORMANCE –
What is frustration?
O The doctrine of frustration operates in
situations where it is established that due
to subsequent change in circumstances, the
contract is rendered legally or physically
impossible to perform by an event not due
to the act or default of either party.
O The parties to the contract are discharged
from further performance of the contract.
(no breach)
O S. 57(2) CA
O The courts in Malaysia have recognized that
under S.57(2), a contract can be frustrated and
discharged without breach or default of either
parties.
O Case : HA Berney v Tronoh
Mines[1949]MLJ 4
HA Berney v Tronoh Mines[1949]MLJ
4
O The court held that the invasion of
Malaya by the Japanese
frustrated the performance of the
contract and therefore there was
no breach of contract by the
Defendants.
O For frustration to apply, it is necessary to
prove that the parties have made no provision
for such events in their contract.
O where the parties have themselves provided
for the situation that has arisen, the provisions
that they have made for the situation in the
contract applies, hence no frustration.
Guan Aik Moh (KL) Sdn Bhd v
Selangor Properties Ltd [2007] 4 MLJ
201
O Gopal Sri Ram JCA - there are three elements
woven into the fabric of the doctrine of frustration:
O First, the event upon which the promisor relies as
having frustrated the contract must have been one
for which no provision has been made in the
contract. If provision has been made then the
parties must be taken to have allocated the risk
between them.
Guan Aik Moh (KL) Sdn Bhd v Selangor
Properties Ltd [2007] 4 MLJ 201
O Second, the event relied upon by the promisor
must be one for which he or she is not
responsible. Put shortly, self-induced
frustration is ineffective.
O Third, the event which is said to discharge the
promise must be such that renders it radically
different from that which was undertaken by
the contract.
(1) Act becomes impossible to
perform
O Illust (b), (d), & (e) to S. 57
O Impossible = difficult?
O What if the act becomes difficult to perform?
Pacific Forest Industries Sdn Bhd v Lin
Wen-Chih [2009] 6 MLJ 293
O If the act becomes difficult to perform—no frustration.
O “...if a party has no money to pay his debt, it cannot be considered
impossible to perform as it is not frustration. Neither can he plead
frustration because the terms of the contract make it difficult to
interpret...”
O The appellants ('defendants') referred two questions to the Federal Court
for determination.
1. whether it was open to an appellate court to find that a contract had been
frustrated, notwithstanding the fact that frustration had not been pleaded
earlier
2. whether the doctrine of frustration recognised the failure of the parties to a
concluded contract… when the contract is in a manner 'consistent with the
prevailing market price'.
(2) Event happens after formation
of contract
O Illust. (d) S.57
O Event was subsequent to the formation of the
contract.
O Not necessary that the event is unforeseen or
unexpected or not contemplated by the parties;
as long as they have made no provision in
their contract for such future event.
(3) No frustration where promisor had
prior knowledge of impossibility
OIllust c
OS.57(3)
(4) Provisions in the contract
intended to have effect
O Where the parties have provided for the
situation that has arisen, then the
provisions in the contract applies — No
frustration.
O Held (FC) :
O the portion acquired was only a small portion of the said land.
The contract was not fundamentally altered by the compulsory
acquisition of a minor portion of the land. The contract was
not frustrated.
(5) Difficulty in interpreting
the terms of the contract
O Case : Pacific Forest Industries Sdn Bhd v Lin Wen-
Chih [2009] 6 MLJ 293
O There was a dispute as to the price that was to be
fixed for the sale of the timber products.
O The price agreed was at ‘a price consistent with the
prevailing market price’