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COVID-19 can be ‘frustrating’

Published: 19th May 2020

Author: Sam Hood & Jesse Savage, Norris Ward McKinnon

Published in: Commercial eSpeaking

COVID-19 can be ‘frustrating’
COVID-19, and the restrictions imposed by the government in an attempt to control it, have deeply affected our lives. However, it’s not just our social lives that have become frustrated. Some businesses and individuals have found themselves party to a contract they can no longer perform due to COVID-19 and the government restrictions. Whether it is an event scheduled during a lockdown that can no longer be held, a customer who you can no longer supply or transport goods to due to travel or border restrictions, or a service you can no longer provide, the ‘doctrine of frustration’ may be able to help.

The courts first recognised the doctrine of frustration in the 1800s case of Taylor v Caldwell (1) where two parties had a contract to lease a music hall that burnt down before any concerts could be held. The court held that the contract was frustrated and the parties were discharged from their obligations under the contract.

‘Frustration’ has a very high threshold. The event causing frustration cannot be caused by either of the parties and must make contractual performance impossible, or radically alter the obligations under the contract. You cannot rely on frustration if the event has become difficult or expensive.

If you can prove frustration then you may be able to recover some or all of the money already paid under the contract. Some, or all, of any money you owed under the contract may also cease to be payable.
Contracts may also have a ‘force majeure’ clause; also with a high threshold. This clause may excuse a party from performing (in whole or in part), allow a delay in, suspend performance of or provide a right to terminate the contract. Where the clause specifically refers to government actions or epidemics it may potentially be used for COVID-19.

If you think either of these situations can give your business some relief, we’re happy to help.

(1) - Taylor v Caldwell [1863] EWHC QB J1.

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