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Frustration and Common Mistake



Law and Sea.
The Doctrine of Frustration

Frustration is always a question of fact and law since it involves a conclusion of law as to whether frustrating event has made the performance of the contract a thing radically different from that which was undertaken by the contract.

Common Mistake
Last updated: 21-Jun-2015

Great Peace Shipping Ltd v Tsavliris Salvage (International) Ltd [2002] EWCA Civ 1407, [2002]  2 All ER (Comm) 999 per Lord Phillips of Worth Matravers MR at p.1018:

[76] If one applies the passage from the judgment of Lord Alverstone CJ in Hobson v Pattenden & Co (1903) 19 TLR 186, which we quoted above to a case of common mistake, it suggests that the following elements must be present if common mistake is to avoid a contract: (i) there must be a common assumption as to the existence of a state of affairs; (ii) there must be no warranty by either party that that state of affairs exists; (iii) the non-existence of the state of affairs must not be attributable to the fault of either party; (iv) the non-existence of the state of affairs must render performance of the contract impossible; (v) the state of affairs may be the existence, or a vital attribute, of the consideration to be provided or circumstances which must subsist if performance of the contractual adventure is to be possible.

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