In this chapter, it is proposed to consider, in relation to the issue of construction of contracts, the issue of unforeseen risks. These may arise either before the parties enter their contract or after performance of the contract has commenced. In either event, it will be necessary for the court to determine how such risks of loss are to be allocated. For the purposes of English law, the devices used to allocate such risks are, in the case of pre-contract risks, rules on mistake and in the case of post-contract risks, the rules encapsulated in the doctrine of frustration. NON-AGREEMENT MISTAKES : Fundamental mistakes Where a mistake is operative, it serves to negative, or in some cases to nullify consent. The former type of mistake is concerned with the question of agreement and is not considered in any detail at this stage. Mistakes which nullify consent, on the other hand, do raise important issues of risk allocation.

doi:10.4324/9781843141518-123

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In this chapter, it is proposed to consider, in relation to the issue of construction of contracts, the issue of unforeseen risks. These may arise either before the parties enter their contract or after performance of the contract has commenced. In either event, it will be necessary for the court to determine how such risks of loss are to be allocated. For the purposes of English law, the devices used to allocate such risks are, in the case of pre-contract risks, rules on mistake and in the case of post-contract risks, the rules encapsulated in the doctrine of frustration. NON-AGREEMENT MISTAKES

ABSTRACT

In this chapter, it is proposed to consider, in relation to the issue of construction of contracts, the issue of unforeseen risks. These may arise either before the parties enter their contract or after performance of the contract has commenced. In either event, it will be necessary for the court to determine how such risks of loss are to be allocated. For the purposes of English law, the devices used to allocate such risks are, in the case of pre-contract risks, rules on mistake and in the case of post-contract risks, the rules encapsulated in the doctrine of frustration.