The doctrine of frustration: A solution to the problem of changed circumstances in South African contract law?

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South African Law Journal

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University of Cape Town

The South African law of contract contains a lacuna in that it addresses only the narrow issue of supervening impossibility and not the broader problem of supervening change of circumstances. Comparative study is illuminating in this regard: many other leading Western legal systems employ a doctrine of changed circumstances. One such example is English law. While this system is more conservative than, for example, the equivalent US law or the model rules of international trade as contained in the Unidroit Principles of International Commercial Contracts, it offers a broad approach of discharge where there has been a “radical change in the obligation”. This feature of English law has been used in several past South African decisions to offer a solution to the lack of a doctrine to deal with changed circumstances in this country. The question needs to be asked what the status of these precedents is and in particular whether the English law of frustration is compatible with the South African common law. The answer is that there are fundamental differences between these two systems and that while English law provides a useful comparative study, in itself it is not the ideal solution to South Africa’s problem.