Constructing frustration

The doctrine of frustration is English contract law's most obvious response to the unexpected.Yet it is so narrowly defined that it rarely applies.Despite hopes for a 'mass of litigation' in response to COVID-19, 1 the great upheavals resulting from the pandemic produced precious few attempts to invoke frustration in published decisions.2 Frustration is nevertheless worthy of attention.The doctrine is not devoid of all practical significance.Parties to the big-money cases that dominate High Court litigation can realistically make express provision for changed circumstances, but frustration may be more important in the lower-value disputes that make up much of the actual life of contract law.For example, many contracts with wedding venues were certainly discharged because of COVID lockdowns.In those cases, the parties reached consensual solutions; sometimes, at least, the law's solution must have cast a shadow over their bargaining.Moreover, English law's approach to changed circumstances remains controversial.Like much of the common law, frustration doctrine has been developed through judicial intuitions.It is thus potentially vulnerable to arguments denying those intuitions.Some heavyweight scholars of English contract law contend that there should be no 'doctrine of frustration'.3