Frustrated Contract Performance Involves Agreements That Become Impossible to Perform Due to Unforeseen Circumstances Such As Special Event Contracts
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If An Act of God, Such As Coronavirus, Makes a Contract Impossible to Complete, What Happens?
If a Contract Contains a Force Majeure Clause Specific to a Type of Incident the Parties May Become Excused. The Doctrine of Frustrated Contracts May Also Excuse Parties When An Incident Makes a Contract Impossible to Perform.
Similar Questions About Frustrated Contracts Include:
- What Happens to Contracts When a State of Emergency Is Declared?
- Can a Person Be Sued For Breach of Contract Despite Coronavirus?
- How Does the Law Treat Contracts Made Impossible Due to a Pandemic?
- Is It a Breach of Contract If a Storm Makes Something Impossible?
- Are Businesses Required to Fulfill Contracts Despite Coronavirus?
A Helpful Guide on How to Determine What Constitutes a Frustrated Contract and Thereby Waives Obligation to Perform
Generally, when a force majeure incident occurs, being an incident that is unforeseen and arises by nature, such as storm, disease, among other things, if such an incident results in a party to a contract being incapable of performing the contract, and the contract stated that the party, or parties, would be excused from performance in circumstances of a force majeure incident of the kind that occurred, the party is excused from performance and the failure to perform is viewed legally as a non-breach.
Commonly, a contract will be silent regarding how a force majeure incident will be treated, meaning that the contract failed to include any specifics on how each party will address the possibility of a force majeure; however, the common law doctrine of frustration of contract, generally, applies to negate the contractual obligations. Additionally, the doctrine of frustration of contract is also codified within the Frustrated Contracts Act, R.S.O. 1990, c. F.34 which states, among other things:
Application of Act
2 (1) This Act applies to any contract that is governed by the law of Ontario and that has become impossible of performance or been otherwise frustrated and to the parties which for that reason have been discharged.
(2) This Act does not apply,
(a) to a charterparty or a contract for the carriage of goods by sea, except a time charterparty or a charterparty by way of demise;
(b) to a contract of insurance; or
(c) to a contract for the sale of specific goods where the goods, without the knowledge of the seller, have perished at the time the contract was made, or where the goods, without any fault on the part of the seller or buyer, perished before the risk passed to the buyer.
Adjustment of Rights and Liabilities
3 (1) The sums paid or payable to a party in pursuance of a contract before the parties were discharged,
(a) in the case of sums paid, are recoverable from the party as money received for the use of the party by whom the sums were paid; and
(b) in the case of sums payable, cease to be payable.
(2) If, before the parties were discharged, the party to whom the sums were paid or payable incurred expenses in connection with the performance of the contract, the court, if it considers it just to do so having regard to all the circumstances, may allow the party to retain or to recover, as the case may be, the whole or any part of the sums paid or payable not exceeding the amount of the expenses, and, without restricting the generality of the foregoing, the court, in estimating the amount of the expenses, may include such sum as appears to be reasonable in respect of overhead expenses and in respect of any work or services performed personally by the party incurring the expenses.
(3) If, before the parties were discharged, any of them has, by reason of anything done by any other party in connection with the performance of the contract, obtained a valuable benefit other than a payment of money, the court, if it considers it just to do so having regard to all the circumstances, may allow the other party to recover from the party benefitted the whole or any part of the value of the benefit.
(4) Where a party has assumed an obligation under the contract in consideration of the conferring of a benefit by any other party to the contract upon any other person, whether a party to the contract or not, the court, if it considers it just to do so having regard to all the circumstances, may, for the purposes of subsection (3), treat any benefit so conferred as a benefit obtained by the party who has assumed the obligation.
Severe Damaging Storms
Examples of a force majeure incident that may frustrate a contract are often those such as extreme weather events. A tornado that destroys an event venue seems a plain and obvious example whereas a tornado strike was likely unforeseeable at the time parties entered into a contract for use of an event venue. With this said, it is possible that some weather events would fail to qualify as a force majeure, such as a snowstorm during the winter season whereas although the snowstorm may be signficant, a snowstorm, even a major snowstorm, is generally a reasonably foreseeable possibility; however, a three-day freezing rain storm, with collapse of hydro-electric towers and loss of major parts of the electrical service grid as occurred in 1998, would more likely be viewed as a force majeure or contract frustrating incident.
Public Emergency Issues
Recently, the COVID-19 pandemic (coronavirus) resulted in the cancellation of many events, activities, services, among other things. In many cases, contracts of various sorts will be affected both directly and indirectly whereas some agreements may become impossible to perform or the performance may become moot. Parties to contracts for which the performance of such contracts is adversely affected by the coronavirus should contact a legal professional, such as Thamar Abdu Paralegal to carefully review whether legal obligations or legal rights are affected, including whether the doctrine of frustrated contract may apply and to discuss the available legal remedies, if any.
A force majeure occurs when an unforseeable circumstance, occurring naturally or outside the influence or control of the parties to a contract, interferes or disrupts the ability to perform the contract. When such occurs, the parties to the contract may be excused from performing the requirements contained within the contract due to application of the common doctrine of frustrated contract. The doctrine of frustrated contract is embodied within the Frustrated Contracts Act which may further address concerns regarding contractual duties such as return of deposits or payment for the value of partially completed contracts.