seem to follow that a conscious choice has been made and that that choice will preclude the operation of the doctrine of frustration of contracts. In Maritime National Fish Ltd v Ocean Trawlers Ltd, the appellants wished to use a type of fishing net known as an ‘otter trawl’ with five ships; three of which they owned and two of which they had chartered. In order to be able to use this type of net in the waters they wished to fish, it was necessary to obtain a government licence. An application for five such licences was duly made, but only three were granted. In the light of this state of affairs, the appellants decided that they would not apply any of the licences granted to a ship named the St Cuthbert which they had on charter from the respondents. In due course, the appellants claimed that the charterparty with the respondents was frustrated due to the decision of the Canadian government department in not granting a sufficient number of licences for the use of otter trawls. However, the Privy Council held that, since the appellants had a free choice in deciding which ships to license, they must have been taken to have elected not to license the St Cuthbert. Accordingly, the frustrating event was said to be self-induced. The decision in Maritime National Fish is defensible in the sense that the appellants did have a choice, but the position ought to be different if the performing party is left with no choice but to breach one contract and perform another. In terms of the principles of risk allocation, if the performing party is left with no choice at all, it may make more sense to treat the contract as frustrated, especially since the remedial rules provided for in the Law Reform (Frustrated Contracts) Act 1943, where they apply, allow for a limited degree of loss sharing as between both parties to the contract. However, this does not appear to represent English law, where the view has been taken that even where the performing party is left with Hobson’s choice, the doctrine of frustration has no application where he is seen to have made a conscious choice between one contract and another. In Lauritzen A/Sv Wijsmuller BV, the defendants contracted to carry the

1995 ◽  
pp. 371-371
Keyword(s):  
Free Choice ◽  
Law Reform ◽  
Otter Trawl ◽  
Risk Allocation ◽  
Privy Council ◽  
Government Department ◽  
Conscious Choice ◽  
Limited Degree ◽  
English Law ◽  
State Of Affairs

Constructive Trusts: II

1997 ◽  
Vol 1 (4) ◽  
pp. 408-419 ◽  
Author(s):  
George L Gretton
Keyword(s):  
Law Reform ◽  
Limited Degree

The first part of this article, which appeared in the May issue, considered whether Scots law has the constructive trust, and concluded that it does, but only to a very limited degree. It was also suggested that the doctrine is an unsatisfactory one. This part looks at options for law reform.

Frustration of purpose and the French Contract Law reform

2018 ◽  
Vol 25 (3) ◽  
pp. 288-309
Author(s):  
Mitja Kovac
Keyword(s):  
International Business ◽  
Contract Law ◽  
Law Reform ◽  
Current Form ◽  
Business Transactions ◽  
The World ◽  
Governing Principle ◽  
English Law ◽  
Unforeseen Contingencies ◽  
Code Civil

Frustration of purpose remains one of the most ill-defined concepts in the English law of contracts. The same problem has also recently attracted the attention of the French legislature in its modernization of the Code Civil. The French reform entitles courts with broad powers to adjust the contract when unforeseen contingencies have made the bargain unduly costly. This article argues that the introduction of an economically inspired adjustment rule in English contract law should be re-considered to maintain its current superior commercial position. If implemented, then the ‘ex ante division of surplus’ should be the governing principle in adjusting contract price, because such a remedy will not affect the agreed-upon division of the surplus. Moreover, this paper suggests that the recent French reform is indeed a long-awaited step toward a more effective regulation of the notorious ‘unforeseen contingencies’ phenomena, but also suggests that further improvements might be needed. Furthermore, it offers a set of arguments suggesting that the English law in its current form might still be the preferred option in the world of international business transactions. The international commercial attractiveness of English contract law, although being challenged by the new French Civil Code, remains undisputed.

Challenging the orthodoxy: a critique of Re Goldcorp and the English law approach to the certainty of subject matter

2019 ◽  
Vol 25 (5) ◽  
pp. 481-492
Author(s):  
Benny Chung
Keyword(s):  
Subject Matter ◽  
Privy Council ◽  
Legal Standard ◽  
English Law ◽  
Financial Losses

Abstract Re Goldcorp Exchange Limited is a landmark, but in my opinion, mistaken Privy Council (PC) decision. First, the PC failed to apprehend the nature of bullion investment and applied the wrong legal standard. Meanwhile, I also argue that the tangible/intangible dichotomy, which is commonly adopted, is mistaken. Secondly, the approach taken by the PC was inconsistent with several common legal theories/principles. Thirdly, even if I was wrong in my previous arguments, the PC was still mistaken in holding that equitable rescission was not available to Goldcorp’s customers, who suffered financial losses, even though there existed misrepresentations.

Independent Development of Israeli Law

1975 ◽  
Vol 10 (4) ◽  
pp. 515-568 ◽  
Author(s):  
Daniel Friedmann
Keyword(s):  
Supreme Court ◽  
International Law ◽  
Legal System ◽  
Case Law ◽  
Private International Law ◽  
Privy Council ◽  
The Past ◽  
Foreign Law ◽  
Local Law ◽  
English Law

It is not always easy to decide when we must turn to English law. And once it has been determined that reference to English law is appropriate, there is the further question of the substance and application of principles drawn from English law. In such case, English law forms part of the local law, and need not be ascertained as required by the rules of private international law in respect of foreign law.This makes the local law directly dependent upon English case-law, which itself is constantly being renewed and developed. Such dependence may seem to impair the independence of the Israeli legal system. The question could not, of course, be raised during the Mandatory period at a time when there existed a possibility of appeal from the Mandatory Supreme Court to the Privy Council in Westminster. But after the establishment of the State Cheshin J. said:It is unthinkable that a sovereign nation with its own laws and its own legal system would continue to be subject to the authority of a foreign nation's legal system and to changes in rulings which are likely to be introduced in her courts, only because in the past, when there was a strong tie between the two nations, the former drew from the legal system of the latter.

4 Project Risks

2015 ◽  
Author(s):  
Dewar John ◽  
Irwin Oliver
Keyword(s):  
Political Risk ◽  
Risk Allocation ◽  
Social Risk ◽  
Currency Risk ◽  
Supply Risk ◽  
Cost Overruns ◽  
Project Risks ◽  
Operating Risk ◽  
English Law ◽  
Risk Cost

This chapter considersthe identification, assessment, allocation, negotiation, and management of the risks associated with a particular project(such as delay risk, cost overruns, technology risk, off-take risk, revenue risk, operating risk, supply risk, currency risk, political risk and environmental and social risk). A project’s value is based principally on its ability to generate revenue during its operating phase. Both the sponsors and the lenders need to be able to effectively identify and manage the risks associated with that project. This chapter also identifies how those risks can be managed and minimized. In addition the chapter contains an analysis under English law of the possible impact on risk allocation in a project arising from the effects of any supervening event.

scholarly journals THE SIGNIFICANCE OF STATUS AND GENETICS IN SUCCESSION TO TITLES, HONOURS, DIGNITIES AND COATS OF ARMS: MAKING THE CASE FOR REFORM

2018 ◽  
Vol 77 (2) ◽  
pp. 321-348 ◽  
Author(s):  
Crispin Agnew of Lochnaw ◽  
Gillian Black
Keyword(s):  
Assisted Reproduction ◽  
Family Law ◽  
Current Understanding ◽  
Law Reform ◽  
Privy Council ◽  
Genetic Link ◽  
Transgender Children ◽  
Tier System ◽  
Coats Of Arms

AbstractThe significant evolution in family law in the last four decades has seen the breaking down of traditional barriers: illegitimacy has been swept away, and children conceived through assisted reproduction are now recognised as the legal children of their parents, even absent a genetic link. Transgender heirs are also fully recognised in their new gender. Yet fundamental exceptions remain in the case of succession to titles, honours, dignities and coats of arms, discriminating against children born out of marriage, or non-genetic children, or transgender children. The decision of the Privy Council in Pringle of Stichill emphasised this divergence, and raised the question of whether law reform is needed. In this article, we explore the rules which govern succession to titles and dignities and the two-tier system which has arisen. By pointing out the inconsistencies and lack of rationale therefor, we make the case for law reform to bring titles and dignities into line with the current understanding of family and succession.

12. Discharge by frustration: subsequent impossibility

2021 ◽  
pp. 599-627
Author(s):  
Robert Merkin ◽  
Séverine Saintier
Keyword(s):  
Theoretical Basis ◽  
Case Law ◽  
Contract Law ◽  
Law Reform ◽  
Risk Allocation ◽  
Force Majeure ◽  
The Subject ◽  
Contractual Obligations ◽  
Contractual Risk ◽  
Selection Of

Poole’s Casebook on Contract Law provides a comprehensive selection of case law that addresses all aspects of the subject encountered on undergraduate courses. Without the fault of either party, a contract may be automatically discharged due to frustration that renders further performance of the contract impossible, illegal, or radically different from what was originally conceived. In this case, the parties will be excused further performance of their contractual obligations. However, the frustration doctrine applies only where there is no express provision in the contract (a force majeure clause) allocating the risk. This chapter, which examines the frustration doctrine and discharge for subsequent impossibility, first considers the contractual risk allocation before turning to the theoretical basis for the doctrine of frustration. It then discusses limitations on the operation of the frustration doctrine before examining the effects of frustration and the effects on the parties’ positions of the Law Reform (Frustrated Contracts) Act 1943.

The Adaptation of Imported Law in Africa

1960 ◽  
Vol 4 (2) ◽  
pp. 66-78 ◽  
Author(s):  
Kenneth Roberts-Wray
Keyword(s):  
Common Sense ◽  
The Other ◽  
Law Reform ◽  
Good Sense ◽  
Legal Rules ◽  
English Law ◽  
The Law ◽  
Law And Justice ◽  
The One ◽  
Law Student

British administration in overseas countries has conferred no greater benefit than English law and justice. That may be a trite observation, but I offer no apology. It has been said so often by so many people—as many laymen as lawyers and perhaps more Africans than Englishmen—that it must be assumed to be true. But what, in this context, are English law and justice, or similar expressions (it is put in many different ways) to be taken to comprehend ? I have heard one or two lawyers who have served overseas speak as if there were a rebuttable presumption that anything suitable for this country should be acceptable for a country in Africa. Even if that were true, and I am sure it is not, it would not that all English legal rules and institutions are appropriate for Africa, for they are not even suitable for England. It is only too true that the law is sometimes “an ass”. Not so often as some laymen like to claim, though laymen may be fair judges of what is good sense in law. I well remember how as a law student I became impatient with principles, especially in the law of torts and the rules of evidence, which to my mind left a large gap between law on the one hand and justice or common sense on the other. I am well aware that in my critical attitude I was at one with the majority, and all lawyers must welcome the labours of the Law Reform Committees, which have borne fruit in a steady stream of important Bills during the last thirty years.

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