A frustrating experience
Summary of the journal article:
Damages is the common remedy in cases of breach of contract. The party who is not able to perform the contract is broadly liable for damages. However, there is an exception to this principle, ie. common law doctrine of frustration. A contract is said to be discharged when performance becomes impossible, illegal or radically different from what was formerly envisaged. In other words, a contract is frustrated, when, after the contract is made, and without the default of either party, a change of circumstances occurs which renders the contract legally or physically impossible of performance.
From the journal article, it is said that cases have usually been confined to uncommon situations, or situations where it would be extremely tough to arrange for another individual, or a third party to carry out the service in question. The doctrine of frustration has fallen out of vague due to the development of statutorily implied terms.
In the case of Atwal v Rochester , the High Court has placed it firmly back on the agenda for sole traders, and those contracting with them. This case is a county court case. However, a point was raised which appears not to have been considered before, Her Honour Judge Kirkham ordered that the case be transferred to the High Court for the sole purpose of giving judgment. After the judgment was given, it was transferred back to the county court for all other purposes. As will be discussed, the two issues in this case were whether it is a personal contract and whether the contract was frustrated or repudiated.
In Atwal case, the issue in dispute was the nature of the performance required under the construction contract. The contract was between property owners, Mr. and Mrs. Atwal, and a sole trader, Mr. Rochester, for construction services. Mr. and Mrs. Atwal were the claimants whereas Mr. Rochester was the defendant in this case. In July 2006, the contract was formed. Mr. Rochester undertook extensive building work to White Lodge, Mr. and Mrs. Atwal's house in Wombourne, and the work began in August 2006.
Mr. Rochester had been known to Mr. and Mrs. Atwal and their relatives for a period of time. Mr. and Mrs. Atwal and their relatives had entered into contracts with Mr. Rochester for a few times previously. In 1997, they engaged Mr. Rochester at their previous home. Mr. Atwal described Mr. Rochester as a very pleasant, polite, and friendly person. He further said that Mr. Rochester was someone you could grow to trust. Mr. Rochester undertook some kitchen titling work for Mr. Atwal's mother and a major job for his brother. In 2000, Mr. Atwal was also content to have been told that the defendant had undertaken the work on a property in Tettenhall that he had considered to purchase.
Then, in 2001, he and his wife purchased White Lodge, the property involved in those court proceedings. They engaged Mr. Rochester in the following year to construct a brick chimney in the...