Due to New Zealand moving to Covid-19 alert Level 4 for at least the next four weeks, many New Zealanders will be assessing the impact of the virus on their contractual obligations. In some circumstances it may be possible for the doctrine of frustration to excuse parties from their contractual obligations.
The doctrine of frustration releases parties from a contract where, by no fault of either party, an intervening event makes performance impossible or radically different from what the parties agreed. If frustration occurs, then the parties don’t have to perform the contract as intended. In New Zealand the doctrine of frustration is supported by the Contract and Commercial Law Act 2017 [CCLA] (formerly in the Frustrated Contracts Act 1944). The CCLA confers four major benefits on parties that are supplementary to the doctrine, it:
In a contract, parties can contract out of the CCLA 2017 by specifically addressing the event of frustration. In such instances, the contractual term will apply instead of the Act.
The following are recognised examples of when frustration can occur:
If the parties to a contract are effected by the above then the doctrine of frustration may apply. However, if the contract has a clause which deals with the risk of disease or government shut down then that clause will prevail and the doctrine of frustration can’t be used.
Parties need to be very careful when asserting frustration. If the doctrine is used incorrectly, then the party refusing performance may be liable for breach of contract. Therefore, we strongly recommend you to talk to one of our commercial lawyers before bringing a contract to an end on the grounds of frustration.
If you need advice, or would like to discuss any business concerns around COVID-19, please contact any of our commercial partners whose contact details are set out below, or call us on 0800 55 44 66 or (04) 496 9990
|Nigel Moody|||||email Nigel|||||P: 04 916 7465|
|John Steel|||||email John|||||P: 04 916 7495|
|Nigel Stirling|||||email Nigel|||||P: 04 916 7472|
|Claire Byrne|||||email Claire|||||P: 04 916 7483|
|Dave Robinson|||||email Dave|||||P: 04 916 6307|
|Mike Gould|||||email Mike|||||P: 04 916 6302|
|Brett Gould|||||email Brett|||||P: 06 370 6475|
|Rhys Williams|||||email Rhys|||||P: 04 916 6452|