Frustration / force majeure

May the force majeure event be with you?

Joseph Worndl

In 2 Entertain v Sony, the High Court held that liability for losses stemming from a warehouse fire during the 2011 London Riots could not be excluded by a force majeure clause. Sony provided warehousing and distribution services to 2 Entertain, a BBC subsidiary selling DVDs. In 2011, during the London riots, a gang set Read More

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Will COVID-19 trigger a force majeure clause under my contract?

Jason Rix

In the light of COVID-19, below is a road map to help you when assessing whether or not a force majeure clause has been triggered in an English law agreement. But first, an apology: you are probably overwhelmed with lists like this. I originally put it together on Friday 13 March (a lifetime ago) with Read More

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Force majeure, causation and damages – a “Classic” conundrum

Jason Rix

In Classic Maritime v Limbungan, the Court of Appeal overturned the High Court and awarded substantial damages for breach even though performance ultimately would not have been possible. Limbungan failed to deliver iron ore to Classic Maritime when a flood shut down the mine producing the ore. The High Court, had held that to rely on Read More

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Brexit does not mean exit for the EMA

Oliver Rule

Nearly three years after the referendum, Britain still hasn’t decided what sort of Brexit it wants. For the European Medicines Agency, however, the prospect of Brexit has already meant a departure from its shiny new headquarters in London, its relocation to Amsterdam even being written into EU law in 2018. Just as Britain has struggled Read More

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Of turbulent relationships, aircraft financing and frustration

Tomasz Hara

The risk of contracts becoming impossible to perform is increasingly a topic of discussion in boardrooms as the Brexit uncertainty intensifies. Can the doctrine of frustration offer a way out for those who find themselves unable to perform their obligations? In APFL v CAI the answer was “no”. APFL’s business model was to buy aircraft from Read More

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Force majeure and causation: iron-ing out the issues

Jason Rix

In Classic Maritime v Limbungan, the High Court held that a contractual force majeure clause incorporated a “but for” test of causation. Limbungan, a charterer, contracted to provide iron ore for shipment by Classic Maritime, a ship owner, but failed to do so after a burst dam forced the mine that supplied the iron ore Read More

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Project Voldemort and the Riddle of force majeure

Benjamin Scrace

In Seadrill Ghana Operations v Tullow Ghana, the High Court found that a defaulting party cannot rely upon “force majeure” to terminate a contract if only one of two events preventing performance is a force majeure event. Oil company Tullow hired a semi-submersible drilling rig from Seadrill for operations off the Ghanaian coast, including in Read More

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Civil unrest, frustrated performances and a thrilling decision – you just cannot beat it

Sherin Bhasker

In The Flying Music Company v Theatre Entertainment, the High Court considered whether a contract to put on “Thriller Live” in Greece had been frustrated by civil unrest. It also covered whether a personal guarantee was supported by consideration and/or voidable for duress. A counterclaim for unjust enrichment and quantum issues were also considered. In Read More

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Troubled times: force majeure

Jason Rix

Why do we need force majeure clauses? The answer is that the common law doctrine of frustration is narrow and the consequences are blunt: the contract is “killed” with no power of suspension. The Law Reform (Frustrated Contracts) Act 1943 allows statutory adjustment but it is short, complex and difficult to navigate. Freedom of contract Read More

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Frustration: no one’s answering my call!

Damien Ryan

If a contract has been frustrated both parties are discharged from their future obligations and the subject matter of the contract may be destroyed (Taylor v Caldwell). Unsurprisingly, therefore, the threshold to establish frustration is high. Frustration depends on a so-called “supervening event” occurring which renders future performance radically different from what the parties had Read More

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