It is also known as the impossibility of occurring. The second paragraph of § 56 mentions the effects of the following impossibilities on the performance of the contract. When a contract is concluded between the parties, it is often very possible to perform it. After that, however, comes something that makes it difficult or illegal to perform the task. In this case, the contract will be considered null and void. This case is called post-contractual or retrospective impossibility. Sometimes the performance of a contract is often quite likely, but the validity of the service is destroyed by the non-occurrence of an event expected by all parties as justification for the contract. The purpose of a contract is for the parties to fulfill their respective promises, and if the contract cannot be fulfilled, the parties will never conclude it. The term “initial impossibility” refers to situations in which the contract could not be performed from the outset. According to Article 56(1), the impossibility must already exist, in fact or in law.
“We therefore believe that the doctrine of frustration is in fact an aspect or part of the Contract Performance Act because it replaces the impossibility or illegality of the agreed act and therefore falls within the scope of section 56 of the Indian Contracts Act. It would be wrong to say that section 56 of the Contracts Act applies only to cases of physical impossibility and that if that section is not applicable, the principles of English law on frustration may be invoked. It should also be noted that, to the extent that the Indian Contracts Act deals with a particular subject, it is conclusive in that regard and it is not permissible to import the principles of English law that abhor these legal provisions. The decisions of the English courts have only convincing value and can be useful in showing how the English courts have decided cases in circumstances similar to those that have been brought before our courts. Physical damage to the article, the disappearance of the article, the unlawfulness of the resulting performance, the delay, death or incapacity of a participant in a contract that implies personal success, and so on are some of the cases of frustration under the provisions of article 56. One or more of these factors may apply to a case. Some of these factors are analysed below: it should be noted that in this memorandum it was stated that force majeure would occur in contracts dependent on the supply chain, but that commercial contracts do not fall within the scope of application from the point of view of the courts. Centuries later, in England, in 1863, in Taylor vs Cardwell,1 it was claimed that when an opera house rented to give concerts was destroyed by fire, the contract was thwarted. Indeed, what exactly the treaty depended on has ceased to exist. Thus, it was decided that for the doctrine of frustration, it must be such that the nature of the contract is such that it would not work if something ceased to exist “The law does not allow a party to ignore the express agreements of the latter and to require the payment of consideration for the performance of the contract at rates other than those fixed. to a vague plea for fairness. Parties to an executable contract are often faced with a turn of events during performance that they did not foresee at all.
B, for example, a completely unusual increase or decrease in price, which is an unexpected obstacle to execution. This alone does not make it possible to get rid of the business they have made. In the present case, this is another case in which it has been established that the impossibility provided for in Article 56 means not only the literal impossibility, but also the practical impossibility. The facts of the case are as follows: the applicants owned a village and they leased land in the village to the defendant for a period of three years from January 1947, but when the partition of India and Pakistan was in progress, the village became part of Pakistan and it was not possible for the defendant for municipal reasons to: to use the land. The complainants argued that this was a self-imposed frustration, but it was found that if the performance of the contract became virtually impossible, she would be considered frustrated under section 56 of the Indian Contracts Act. therefore, if they codified their laws, contracts would not require specific provisions such as force majeure in their contract and common law countries would not have codified laws, so those provisions must be expressly provided for in the contract. Also in Paradine v. Jane2, it was stated that “a man was obliged, under the general rule of the contract, to fulfil the undertaking he had made and could not claim to be excused by the mere fact that performance had subsequently become impossible; because the party could expressly provide in its agreement that if a condition is met or if an event occurs, one or both of them would be released from all or part of their obligations under the contract.
This was the concept of the “absolute contract”. After various cases in which people were excused for non-performance of the contract, the doctrine in England became in a Krell vs Henry3 rental case in 1903, when an Englishman named Krell rented his London apartment to C.S Henry to attend a royal procession, which was later cancelled and Henry refused to pay the balance of the rent. Krell filed a lawsuit, but the English court ruled against him on the grounds that the object of the contract between them was “thwarted.” The court thought that if Krell and Henry had planned to cancel the king`s procession, they would not have reached the agreement. She noted that the procession was the basis of the contract. English law has extended the principle beyond cases where the object of the contract has been destroyed, making performance impossible, to cases where the impossibility of performance follows the termination of an “express condition or condition” essential to the contract. In another Supreme Court case, Nirmala Anand v. Advent Corporation Pvt. Ltd.6, the case concerned an action for the practical performance of the contract for the purchase of an apartment in a building on land leased by the municipality. The Court noted that if the competent authorities were not displaced and the request for consent or sanction was rejected once and for all, and such a refusal ultimately became undecided and the performance of the contract was made impossible, resulting in frustration u/s 56, the facilitation cannot be refused for having highlighted certain obstacles. COVID-19 is a game changer in many ways – it remains to be seen whether it reverses the dominant principles of force majeure and the frustration of contracts due to “impossibility”. The existing legal provisions and associated Indian case law appear to be strong enough to deal with the significant and far-reaching legal consequences of the virus pandemic. Whether such consequences will effectively enable the parties to successfully evade their obligations in individual cases always depends on the proven standards of the individual case – namely whether the changed circumstances have completely destroyed the contractual basis and underlying object and whether the contractual agreement has actually been terminated by the significantly modified terms.
That`s until the fullness of the covid-19 disaster unfolds. A resulting change in law or legal situation that affects a contract and prevents the performance of the contract is a known cause of frustration according to § 56. Until the treaty provides otherwise, “law” may include international law. It is important to note that force majeure is present in customary law as contractual doctrine. In other words, the doctrine of frustration is an inherent factor in section 56 of the Act. However, it cannot be claimed in case of economic difficulties, nor used as a way to avoid a bad deal. The source of the doctrine of frustration in English law is essentially derived from Taylor v. Caldwell.
The case revolves around the purchase of an opera for the concerts, which was burned by fire and the contract thwarted. This frustration was due to the fact that the main purpose on which the contract depended no longer existed, namely the burning of the opera house. Therefore, it was decided that the treaty`s frustration of applying the nature of the contract must be such that it would not work if something ceased to exist. The beginning of the Indian Constitution also put an end to treaties that violated one of the articles of the Constitution. The application of Article 19(1)(g) thwarted a treaty which granted a monopoly on the manufacture of radios and other electronic equipment. Beyond antiquity, the first instance of frustration dates back to the Queen`s Bench judgment in 1863 in Taylor v. Cardwell. In this particular case, an opera house was destroyed by an accidental fire and therefore could not hold the performance of the opera, the plaintiff (a buyer of the ticket for the opera) sued the defendant for breach of contract. However, it was decided that the defendant is not obliged to pay damages, since the one on which the entire performance of the contract was based was destroyed without fault of one of the parties, so that it was found that the parties were released from their contractual obligations […].
