33. Effectively these are contracts whereby discharge may arise through agreement. For example in ABERFOYLE PLANTATION LTD V CHENG (1960) where the parties agreed in 1955 to sell and buy a plantation which included 182 acres in respect of which leases had expired in 1950. The Vendor had tried without success in the intervening years to obtain a renewal of the leases. The agreement provided that the purchase is conditional on the vendor obtaining a renewal of the leases. If he was unable to fulfill this condition, this agreement shall become null and void. The vendor failed to obtain the renewal. The purchaser had paid some deposit money for the purchase and now sued to recover the deposit money from the seller. The Court held that:-

(a) the purchaser could not recover the deposit he had paid.

(b) the purchaser could recover part of the deposit he had paid.

(c) the purchaser could not recover part of the deposit he had paid.

(d) the purchaser could recover the deposit he had paid.

34. A contract is said to be frustrated when there is a change in the circumstances which renders a contract legally or physically impossible of performance. There are instances of the contracts which have been discharged by frustration at common law. In the case which give rise to the doctrine of frustration, the subject matter of the contract was destroyed before performance fell due. For example in the case of TAYLOR V CALDWELL (1863) where a hall was let to the plaintiff for a series of concerts on specified dates. Before the date of the first concert the hall was accidentally destroyed by fire. The plaintiff sued the owner of the hall for damages for failure to let him have the use of the hall as agreed. The Court held that:- (a) the destruction of the subject matter rendered the contract not impossible to perform and discharged the defendant from his obligation under the contract.

(b) the destruction of the subject matter rendered the contract impossible to perform and not discharged the defendant from his obligation under the contract.

(c) the destruction of the subject matter rendered the contract impossible to perform and discharged the defendant from his obligation under the contract.

(d) the non destruction of the subject matter rendered the contract impossible to perform and discharged the defendant from his obligation under the contract.

35. Government intervention is a common cause of frustration, particularly in time of war. If maintenance of contract would impose upon the parties a contract fundamentally different from that which they made, the contract is discharged. For example METROPOLITAN WATER BOARD V DICK, KERR & CO (1918) where the defendants contracted in July 1914 to built a reservoir for the plaintiffs within six years subject to the proviso that the time should extended if delays were caused by difficulties, impediments or obstructions. War broke out and after the war the was no longer the need for reservoir. In February 1916 the Minister of Munitions ordered the defendants to cease work and sell all their plant. The Court held that:-

(a) the proviso in the contract did cover such a substantial interference with the contract. The interruption was likely to cause the contract, if resumed, to be radically different from that contemplated by the parties. The contract was discharged for frustration.

(b) the proviso in the contract did not cover such a substantial interference with the contract. The interruption was not likely to cause the contract, if resumed, to be radically different from that contemplated by the parties. The contract was discharged for frustration.