which was originally agreed. Just as in the case of the common law rules on shared mistake, the emphasis is upon the fundamentality of the interruption to the performance of the contract. However, it has been seen already that the test of fundamentality gives very few answers to the question: when is a contract frustrated? Moreover the concentration on the issue of fundamentality also disguises the important risk allocation role played by the rules gathered together under the doctrine of frustration. Like the rules on shared mistake, many of the principles underlying the doctrine of frustration also consider the intentions of the parties, who is the superior risk bearer and who is the least cost avoider. In historical terms, the doctrine of frustration is a relative newcomer to the battery of rules which regulate the contracting process, being traceable to a mid-19th century case which sought to justify the excuse for non-

doi:10.4324/9781843141518-134

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which was originally agreed. Just as in the case of the common law rules on shared mistake, the emphasis is upon the fundamentality of the interruption to the performance of the contract. However, it has been seen already that the test of fundamentality gives very few answers to the question: when is a contract frustrated? Moreover the concentration on the issue of fundamentality also disguises the important risk allocation role played by the rules gathered together under the doctrine of frustration. Like the rules on shared mistake, many of the principles underlying the doctrine of frustration also consider the intentions of the parties, who is the superior risk bearer and who is the least cost avoider. In historical terms, the doctrine of frustration is a relative newcomer to the battery of rules which regulate the contracting process, being traceable to a mid-19th century case which sought to justify the excuse for non-

ABSTRACT

In historical terms, the doctrine of frustration is a relative newcomer to the battery of rules which regulate the contracting process, being traceable to a mid-19th century case39 which sought to justify the excuse for nonperformance of existing contractual obligations on the ground that there was an implied condition that if a particular thing was expected by the parties to exist and that thing was destroyed without fault on either side, neither party should be expected to perform that which had become impossible. Subsequently, the doctrine was extended to cover cases in which performance was literally possible but in which the external event rendered futile any further performance of the contractual obligations of both parties.40