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Abolishing the Doctrine of Frustration

Lavneet Dhillon

Vol. 54

June 2021

Page 2605

The common law doctrine of frustration serves as a defense to the enforceability of a contract in the event of a supervening circumstance that renders the value of one party’s performance essentially worthless to the other. A commonly held preconception appears to exist regarding this defense — namely, that it is rarely successful as a means of discharging a party’s performance under a contract. As one author aptly asked, “Why are the courts, however willing to recognize frustration of purpose in the abstract, so staunch in their refusal to use it as a predicate for relief?” Despite the seemingly widespread acceptance of this assumption, there appears to be no recent data that either supports or disproves it. The most recent study on the doctrine of frustration was conducted in 1960. This belief, in turn, raises further questions. If it is true that the defense is rarely successful, what purpose, if any, does it actually serve? In light of this, should the defense be modified or restructured in some way to increase its success? Or, better yet, should it be abolished altogether?

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