motivation of one party did not form the foundation of the contract; it was therefore possible to fulfil the core obligations, and so there could be no frustration. In Krell,18 despite the express contract not mentioning the coronation, the advertisement for the room explicitly noted its use for overseeing the coronation. As well as this, the room hiring was for the days, not the nights, which is when the coronation proceedings would occur, and the price of the room was matched to the value taking into consideration the coronation. As McBride writes, this room would not have been booked out had the coronation not been planned, at all.19 In this way, the foundation of the contract was a license to use the room to see the coronation. It was impossible to fulfil this obligation without the coronation, and so the contract was frustrated. The difference between Krell and Herne Bay, therefore, is what the parties determined the foundation of the contract to be. This is close to McBride’s interpretation, but he continued calling it frustration of purpose, and didn’t explain what was going on in the minds of the parties, whereas this interpretation fits the cases into existing doctrines. Frustration of purpose has only ever been used in Krell, and no subsequent cases since. This, it is submitted, is a demonstration of the fact that frustration of purpose isn’t the best description- naming it impossibility means it is put alongside other frustration cases, and streamlines the law on contractual frustration, as well as explaining the difference in treatment between Krell and Herne Bay. This interpretation is also closer to judicial explanation in the Krell case. Lord Justice Vaughan Williams notes that “it is sufficient [for frustration] if a state of things or condition expressed in the contract and essential to its performance perishes or fails to be in existence at that time. In the present case the condition which fails and prevents the achievement of that which was, in the contemplation of both parties, the foundation of the contract.”20 Lord Justice Vaughan Williams has therefore assessed, in Krell, that because the foundation of the contract was impossible to fulfil, frustration must ensue. This is compatible with both Davis Contractors and Taylor v Caldwell and is therefore better for consistency within the law of frustration in contract. 18 19 20
[1903] 2 KB 740 McBride, N, Key ideas in contract law, p42. [1903] 2 KB 740, 754 (Vaughan Williams L.J)
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