header-logo header-logo

24 March 2023 / David Langwallner
Issue: 8018 / Categories: Features , Profession , Commercial
printer mail-detail

Frustration by impossibility: come hell or high water

115792
What would Denning do? David Langwallner reports on frustration by impossibility in modern contract law

Lord Denning was, of course, the greatest of all contractual lawyers, and mitigated the excesses of the law of contract.

This law is primarily individualistic and commercial, with occasional concessions to non-market sensibilities. Lord Denning, in contrast, was the great stalwart of innovation in contract, and by promissory estoppel in particular prevented in effect inequitable contracts and promises from being enforced where there was a state of exceptionalism, such as life during wartime (Central London Property Trust Ltd v High Trees House Ltd [1947] KB 130).

What applies where an unforeseen event makes performance of the contract impossible? And how should a Denning-esque judge react to our present situation? The recent jurisprudential record is not good.

Emergency situations

The doctrine of frustration of contract is designed to cope with emergency situations. In doctrinal terms, if a contract is frustrated, it effectively comes to an end and the parties are released

If you are not a subscriber, subscribe now to read this content
If you are already a subscriber sign in
...or Register for two weeks' free access to subscriber content

MOVERS & SHAKERS

Cripps—Radius Law

Cripps—Radius Law

Commercial and technology practice boosted by team hire

Switalskis—Grimsby

Switalskis—Grimsby

Firm expands with new Grimsby office to serve North East Lincolnshire

Slater Heelis—Will Newman & Lucy Spilsbury

Slater Heelis—Will Newman & Lucy Spilsbury

Property team boosted by two solicitor appointments

NEWS
The Supreme Court has delivered a decisive ruling on termination under the JCT Design & Build form. Writing in NLJ this week, Andrew Singer KC and Jonathan Ward, of Kings Chambers, analyse Providence Building Services v Hexagon Housing Association [2026] UKSC 1, which restores the first-instance decision and curbs contractors’ termination rights for repeated late payment
Secondments, disciplinary procedures and appeal chaos all feature in a quartet of recent rulings. Writing in NLJ this week, Ian Smith, barrister and emeritus professor of employment law at UEA, examines how established principles are being tested in modern disputes
The AI revolution is no longer a distant murmur—it’s at the client’s desk. Writing in NLJ this week, Peter Ambrose, CEO of The Partnership and Legalito, warns that the ‘AI chickens’ have ‘come home to roost’, transforming not just legal practice but the lawyer–client relationship itself
A High Court ruling involving the Longleat estate has exposed the fault line between modern family building and historic trust drafting. Writing in NLJ this week, Charlotte Coyle, director and family law expert at Freeths, examines Cator v Thynn [2026] EWHC 209 (Ch), where trustees sought approval to modernise trusts that retain pre-1970 definitions of ‘child’, ‘grandchild’ and ‘issue’
Fresh proposals to criminalise ‘nudification’ apps, prioritise cyberflashing and non-consensual intimate images, and even ban under-16s from social media have reignited debate over whether the Online Safety Act 2023 (OSA 2023) is fit for purpose. Writing in NLJ this week, Alexander Brown, head of technology, media and telecommunications, and Alexandra Webster, managing associate, Simmons & Simmons, caution against reactive law-making that could undermine the Act’s ‘risk-based and outcomes-focused’ design
back-to-top-scroll