chapter
UNIDROIT principles are similar (Art 6.2.1). But where, say, inflation or Sourcebook on Obligations and Remedies shortages become so severe that they threaten the economic existence of one of the parties, it may be that it is not in the general interest that such a party should be allowed to go bankrupt. Where one or both of the parties is a public body, the general interest becomes of even more relevance. What is interesting about the Davis and the Staffordshire Waterworks cases is that they appear to be reflecting the dichotomy between hardship and impediment. But the question, of course, is the extent to which the PECL and UNIDROIT rules might affect the result of Davis. Would it still be decided the same way even if there was a right to request renegotiation? (Cf UNIDROIT, Art 6.2.3.) 3 Was Lord Denning, in Staffordshire Waterworks, in effect applying the old implied term theory of frustration? Does Staffordshire Waterworks conflict with the Davis Contractors case? Was Lord Denning getting close to utilising rescission in equity to deal with this contractual problem? Why should this equitable remedy not be available to deal with frustration problems? 4 Why should the contractor in Davis and not the local authority be the one to shoulder the risk of the unforeseen shortages? Would it be in the public interest to bankrupt the private contractor? Were the shortages to be foreseen or not? Ought they to have been foreseen? What if the houses had been only partially completed and the builders were facing bankruptcy unless the local authority agreed to pay more? 5 Do you find the reasons for abandoning the implied term theory of frustration convincing? If contract is based upon the act of the parties, is not frustration a matter of implied condition precedent with reference to the status of the parties? Or might it not be a question of level of duty, and is duty not a question of terms? 6 Does Davis introduce a new remedy of rescission at common law? 7 Is it a material fact that the builders were a ‘big firm of contractors’? 8 If, in Staffordshire Waterworks, the two parties had been private commercial bodies, would the result of this case have been the same? 9 How can a term of a contract ‘cease to bind’? Upon what legal authority does Lord Denning base his thesis that the golden rule of interpretation has been abandoned? What method of interpretation does Lord Denning replace it with? 10 Are the two cases dealing with the public rather than the private interest? Does the public interest have a role in frustration cases?
Pages 9

On termination of the contract a party who has supplied property which can be returned and for which it has not received payment or other counterperformance may recover the property.

Article 9:309 Recovery for performance that cannot be returned

On termination of the contract a party who has rendered a performance which cannot be returned and for which it has not received payment or other counterperformance may recover a reasonable amount for the value of the performance to the other party.