Happy and glorious (and, we hope, not frustrated)

By | 5 May 2023

By Ronald Richenburg

As the first coronation in almost 70 years draws near, thoughts of history, tradition, ceremony, national pride, and contract law will fill many minds (the last of these perhaps to a slightly lesser degree than the others!).  At least since 2003, the various paperback editions of Treitel on Contract have used interesting paintings from museum collections as cover images.  In the current edition (15th ed. by Edwin Peel, 2020) the painting shows the coronation of Edward VII on 9 August 1902.  The precise date is of significance because the coronation was originally scheduled for 26 June but postponed to 9 August after the King came down with appendicitis.

John Henry Francis Bacon (1865-1914), "The Homage-Giving, Westminster Abbey, 9th August1902", painted 1903. Copyright National Portrait Gallery, London. (Creative Commons CC-BY-NC-ND 3.0) (Used on the cover of "Treitel on Contract", 15th ed., 2020)

John Henry Francis Bacon (1865-1914), “The Homage-Giving, Westmister Abbey, 9th August 1902”, painted 1903, Copyright National Portrait Gallery, London (Creative Commons CC BY-NC-ND 3.0) (Used on the cover of “Treitel on Contract”, 15th ed., 2020)

This created an array of problems that few people would previously have thought about.  Many manufacturers of memorabilia simply kept the original date, and this is what one generally sees on coronation mugs and other commemorative items in antiques shops.  But the problems were greater for individuals who had paid large sums of money for the use of rooms overlooking the route of the coronation procession in order to see the procession on 26 June.  Litigation naturally resulted.  There was also at least one case involving a different type of event that was intended to take place on that day.  These have come to be known as the coronation cases and they are an essential part of any discussion of frustration of contract.

Until the middle of the 19th century, contractual obligations were absolute and failure to carry them out made a party to a contract liable in damages even if fulfilling the terms of the contract had become impossible.  In 1863, in the case of Taylor v. Caldwell, 3 B. & S. 826, 122 E.R. 309, involving a music hall that had been hired for concerts to be given on certain days, it was held that both parties to the contract of hire were excused from their obligations after the music hall burned down prior to the dates of the concerts because there was an implied condition in the contract that the music hall would continue to exist.  This was the beginning of the doctrine of frustration.

The next major development came with the coronation cases.  The most frequently cited of these is probably Krell v. Henry, [1903] 2 K.B. 740, where a contract to use a room overlooking the route of the coronation procession was at issue.  It was held that frustration can be found to exist not only when performance becomes physically impossible (as in Taylor v. Caldwell), but also when an underlying condition that is essential to the performance of the contract ceases to exist.  In this case, the occurrence if the coronation procession was regarded by both parties as the foundation of the contract.

Other coronation cases and later cases reached what might be regarded as varying results.  So, for example, the fact that one purpose of a contract was frustrated would not release the parties from their obligations if other purposes still persisted.  And the courts certainly did not want to treat a change in the economic climate as frustration, as this would permit a person who had made what simply turned out to be a bad bargain escape liability.  Some uncertainties about liability were resolved by the Law Reform (Frustrated Contracts) Act 1943, but this was by no means a comprehensive solution.

In very recent years, the question of whether the outbreak of Covid can be regarded as a frustrating event has been of great interest and has been discussed on the websites of many law firms, often in the context of the general principles of the doctrine of frustration.

We will now see whether a coronation in 2023 gives rise to problems as interesting and as unexpected as those that arose in 1902.