Lloyd's Maritime and Commercial Law Quarterly
BOOK REVIEW - FORCE MAJEURE AND FRUSTRATION OF CONTRACT
FORCE MAJEURE AND FRUSTRATION OF CONTRACT edited by Ewan McKendrick, Lecturer in Law at the London School of Economics and Political Science. Lloyd’s of London Press, London (1991, xxx and 229 pp., plus 5 pp. Index). Hardback £55.
One sub-librarian, who I shall not identify for fear of falling books, looked at the title of this book and instantly classified it as French law. Some French law there is in this book, as well as law of the United States, and there is also some comparison of laws, but English law has its own idea of force majeure, derived from contracts drawn in England by trade associations. In the main, this is a book of English law. It is a collection of essays by a distinguished array of authors, most of which were first brought before a conference and now, bound up with others, are put before a wider audience.
The book is divided into three parts. The first is headed “General Principles”. It starts well with William Swadling, whose chapter, “The Judicial construction of Force Majeure Clauses,” reminds us of basic common law concepts: the rule of absolute contracts, construction contra proferentem and, in particular, the definitional role of exclusions clauses. A reminder of that role (also underlined by Palmer in Chapter 6) is welcome, as it was in some danger of being obscured by Smith v. Eric S. Bush [1990] 1 A.C. 831 and it is good groundwork for Swadling’s discussion of the juridical nature of force majeure clauses. To draft a force majeure clause without thought to these and many other matters covered in this book would be rash. This, perhaps, is why Chapter 2, on drafting force majeure clauses by Professor Michael Furmston, is relatively short. Chapter 3, “Frustration and Force Majeure—Their Relationship and a Comparative Assessment”, by Ewan McKendrick, picks up where Chapter 1 left off. He concludes that a clause does not “of itself exclude the doctrine of frustration”, to which, therefore, he returns with an orthodox exposition of the basic common law rules in the light of recent cases, notably The Super Servant 2 [1990] 1 Lloyd’s Rep. 1. The case is scrutinized closely and he sees doubt and ambiguity which, until now, the reviewer had not seen.
McKendrick is also the writer of Chapter 4, “The Consequences of Frustration—The Law Reform (Frustrated Contracts) Act 1943”. There is little reference to Glanville Williams’ monograph on the Act, perhaps because it is now seen with the eye of Lord Goff and of unjust enrichment to a degree that makes Wiliams’ work look dated, at least for the time being. In any event, this chapter is enriched with comment and criticism from (the British) Commonwealth countries arising out of their attempts to improve on the Act. Chapter 4 provides a useful review of the Act, considering the questions answered, implied and unanswered by B. P. Exploration Co. (Libya) Ltd. v. Hunt (No. 2) [1979] 1 W.L.R. 783; [1981] 1 W.L.R. 232; [1983] 2 A.C. 352. It is hard to disagree with the conclusion that “the Court of Appeal in BP v. Hunt displayed little or no interest in providing any guidance for
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