ElectronicjournalofcomparatIveLaw,vol.8.1(march2004),<http://www.ejclorg/> of the modern idea of frustration was given by lord Radcliff in Davis Contractors v fareham Urban DC,36 as follows: [F]rustration occurs whenever the law recognizes that without default of either party a contractual obligation has become incapable of being performed because the circumstances in which performance is called for would render it a thing rad ically different from that which was undertaken by the contract. However, Davis was no case in which the claimant succeeded with the argument of frustration; it has generally been observed that cases of frustrat ion are rare 37 Comparing it to Article 8: 108, frustration seems to be the one with the wider application. Both are only applicable for subsequent obstacles. 38 But the obstacle does not need to amount to an impediment; 9 also delay40 or frustration of purpose+I may amount to al frustration Frustration and Article 8: 108 may accord on the second and third requirements, externality and unforeseeability of the imped iment There are some dicta that the supervening event must be something altogether outside the control of the parties'42 like under the PeCL Thus, fault on the part of the debtor averring frustration generally excludes frustration+3as well as any discharge accord ing to the PECL. This is accepted for intentional actions whereas the law is uncertain if the subsequent event is caused by negligence. 44 It is also [1956 AC 696; National Carriers Ltd v Panalpina((Northern) Ltd [ 1981]AC 675; Pioneer Shipping Ltd v BTP Tioxide Ltd( The Nema'(No 2))[1982 AC 724; for a similar reasoning prior to Davis Contractors cf FA Tamplin Steamship Company v Anglo-Mexican Petroleum Products Company [1916]2 AC 397. Davis Contractors is also cited as an authority in Scotland; HL Mac Queen, J Thomson, Contract Law in Scotland (2000), para 4.100; W WMcBryde, The Law of Contract in Scotland, 2nd edn(2001), para 21-08 E McKendrick, Force Majeure and Frustration: Their Relationship and a Comparative Assessment,in dem,n6,33,42f. Amalgamated Investment Property Co w John Walker& Sons [1977]1 WLR 164(CA); E McKendrick, Contract Law, 4th edn(2000), 301; MacQueen/Thomson, n 36, para 4.91; McBryde, n 36, 21-04 Corp Ltd (1942)AC 154, 163f; Taylor v Caldwell, n 30; cf Treitel, n 6, paras 3-001f ine v Imperial Smelting Kodros Shipping Corporation v Empresa Cubana de flees, The Evia'(No 2))[1982] 1 Lloyds Rep 334(CA), affirmed[1983]1 AC 736 Krell v Henry [1903 2 KB 740(CA), but contrast the same courts decision in Herne Steamboat v Hutton [ 1903]2 KB 740(CA), which is not easily distinguish ble from Krell v Henry, cf discussion in McKendrick, n 38, 306ff. Scots law on this point remains unclear, cf McBryde, n 36, 21-33ff with further references J Lauritsen AS v Wijsmuller Bl(The Super Servant Two)[1989]1 Lloyds Rep 148, 156, affirmed 990]1 Lloyd's Rep 1(CA), in which Bingham LJ stated: The essence of frustration is that it is caused by some unforeseen supervening event over which the parties to the contract have no control and for which they are therefore not responsible. McBryde, n 36, para 21-43 states that" beyond the control the test is describing the law more accurately than referring to externality'and foreseeability 43 McKendrick, n 6, 50f; Treitel, n 6, para 14-001 calls it the preferable view' In Joseph Constantine Steamship Line v Imperial Smelting Corporation, n 39, it was considered obiter hether negligence on the part of the party seeking relief denies the claim of frustration, contrast 166 perElectronic Journal of Comparative Law, vol. 8.1 (March 2004), <http://www.ejcl.org/> 7 of the modern idea of frustration was given by Lord Radcliff in Davis Contractors v Fareham Urban DC, 36 as follows: ‘[F]rustration occurs whenever the law recognizes that without default of either party a contractual obligation has become incapable of being performed because the circumstances in which performance is called for would render it a thing radically different from that which was undertaken by the contract.’ However, Davis was no case in which the claimant succeeded with the argument of frustration; it has generally been observed that cases of frustration are rare.37 Comparing it to Article 8:108, frustration seems to be the one with the wider application. Both are only applicable for subsequent obstacles.38 But the obstacle does not need to amount to an impediment;39 also delay40 or frustration of purpose41 may amount to legal frustration. Frustration and Article 8:108 may accord on the second and third requirements, externality and unforeseeability of the impediment. There are some dicta that the supervening event must be ‘something altogether outside the control of the parties’42 like under the PECL. Thus, fault on the part of the debtor averring frustration generally excludes frustration43 as well as any discharge according to the PECL. This is accepted for intentional actions, whereas the law is uncertain if the subsequent event is caused by negligence.44 It is also 36 [1956] AC 696; National Carriers Ltd v Panalpina (Northern) Ltd [1981] AC 675; Pioneer Shipping Ltd v BTP Tioxide Ltd (‘The Nema’ (No 2)) [1982] AC 724; for a similar reasoning prior to Davis Contractors cf F A Tamplin Steamship Company v Anglo-Mexican Petroleum Products Company [1916] 2 AC 397. Davis Contractorsis also cited as an authority in Scotland; H L MacQueen, J Thomson, Contract Law in Scotland (2000), para 4.100; W W McBryde, The Law of Contract in Scotland, 2nd edn (2001), para 21-08. 37 E McKendrick, ‘Force Majeure and Frustration: Their Relationship and a Comparative Assessment’, in idem, n 6, 33, 42f. 38 Amalgamated Investment & Property Co v John Walker & Sons [1977] 1 WLR 164 (CA); E McKendrick, Contract Law, 4th edn (2000), 301; MacQueen/Thomson, n 36, para 4.91; McBryde, n 36, 21 -04. 39 But an impediment may frustrate the contract, Joseph Constantine Steamship Line v Imperial Smelting Corp Ltd [1942] AC 154, 163f; Taylor v Caldwell, n 30; cf Treitel, n 6, paras 3-001ff. 40 Kodros Shipping Corporation v Empresa Cubana de Fletes, (‘The Evia’ (No 2)) [1982] 1 Lloyd’s Rep 334 (CA), affirmed [1983] 1 AC 736. 41 Krell v Henry [1903] 2 KB 740 (CA); but contrast the same court’s decision in Herne Steamboat v Hutton [1903] 2 KB 740 (CA), which is not easily distinguishable from Krell v Henry; cf discussion in McKendrick, n 38, 306ff. Scots law on this point remains unclear; cf McBryde, n 36, 21-33ff with further references. 42 J Lauritzen AS v Wijsmuller BV (‘The Super Servant Two’) [1989] 1 Lloyd’s Rep 148, 156, affirmed [1990] 1 Lloyd’s Rep 1 (CA), in which Bingham LJ stated: ‘The essence of frustration is that it is caused by some unforeseen supervening event over which the parties to the contract have no control and for which they are therefore not responsible.’ McBryde, n 36, para 21-43 states that ‘beyond the control’ the test is describing the law more accurately than referring to ‘externality’ and ‘foreseeability’. 43 McKendrick, n 6, 50f; Treitel, n 6, para 14-001 calls it ‘the preferable view’. 44 In Joseph Constantine Steamship Line v Imperial Smelting Corporation, n 39, it was considered obiter whether negligence on the part of the party seeking relief denies the claim of frustration, contrast 166 per