3 Best & S.

826
122 Eng. Rep. 310 (Q.B. 1863)
TAYLOR
v.
CALDWELL
Queen’s Bench
May 6, 1863
2
The declaration alleged that by an agreement, bearing date the 27th May, 1861, the defendants
agreed to let, and the plaintiffs agreed to take, on the terms therein stated, The Surrey Gardens
and Music Hall, Newington, Surrey, for the following days, that is to say, Monday the 17th June,
1861, Monday the 15th July, 1861, Monday the 5th August, 1861, and Monday the 19th August,
1861, for the purpose of giving a series of four grand concerts and day and night fetes, at the
Gardens and Hall on those days respectively, at the rent or sum of 100l. for each of those days. It
then averred the fulfilment of conditions etc., on the part of the plaintiffs; and breach by the
defendants, that they did not nor would allow the plaintiffs to have the use of The Surrey Music
Hall and Gardens according to the agreement, but wholly made default therein, etc.; whereby the
plaintiffs lost divers moneys paid by them for printing advertisements of and in advertising the
concerts, and also lost divers sums expended and expenses incurred by them in preparing for the
concerts and otherwise in relation thereto, and on the faith of the performance by the defendants
of the agreement on their part, and had been otherwise injured, etc.3
Pleas. First. Traverse of the agreement.4
Second. That the defendants did allow the plaintiffs to have the use of The Surrey Music Hall
and Gardens according to the agreement, and did not make any default therein, etc.5
Third. That the plaintiffs were not ready or willing to take The Surrey Music Hall and Gardens.6
Fourth. Exoneration before breach.7
Fifth. That at the time of the agreement there was a general custom of the trade and business of
the plaintiffs and the defendants, with respect to which the agreement was made, known to the
plaintiffs and the defendants, and with reference to which they agreed, and which was part of the
agreement, that in the event of the Gardens and Music Hall being destroyed or so far damaged by
accidental fire as to prevent the entertainments being given according to the intent of the
agreement, between the time of making the agreement and the time appointed for the
performance of the same, the agreement should be rescinded and at an end; and that the Gardens
and Music Hall were destroyed and so far damaged by accidental fire as to prevent the
entertainments, or any of them, being given, according to the intent of the agreement, between
the time of making the agreement and the first of the times appointed for the performance of the
same, and continued so destroyed and damaged until after the times appointed for the
performance of the agreement had elapsed, without the default of the defendants or either of
them.
Although the Civil law is not of itself authority in an English Court, it affords great assistance in
investigating the principles on which the law is grounded. And it seems to us that the common
law authorities establish that in such a contract the same condition of the continued existence of
the thing is implied by English law.
25
There is a class of contracts in which a person binds himself to do something which requires to
be performed by him in person; and such promises, e.g. promises to marry, or promises to serve
for a certain time, are never in practice qualified by an express exception of the death of the
party; and therefore in such cases the contract is in terms broken if the promisor dies before
fulfilment. Yet it was very early determined that, if the performance is personal, the executors
are not liable; Hyde v. The Dean of Windsor (Cro. Eliz. 552, 553). See 2 Wms. Exors. 1560, 5th
ed., where a very apt illustration is given. "Thus," says the learned author, "if an author
undertakes to compose a work, and dies before completing it, his executors are discharged from
this contract: for the undertaking is merely personal in its nature, and, by the intervention of the
contractor's death, has become impossible to be performed."For this he cites a dictum of Lord
Lyndhurst in Marshall v. Broadhurst (1 Tyr. 348, 349), and a case mentioned by Patteson J. in
Wentworth v. Cock (10 A. & E. 42, 45-46). In Hall v. Wright (E. B. & E. 746, 749), Crompton
J., in his judgment, puts another case. "Where a contract depends upon personal skill, and the act
of God renders it impossible, as, for instance, in the case of a painter employed to paint a picture
who is struck blind, it may be that the performance might be excused."
26
It seems that in those cases the only ground on which the parties or their executors, can be
excused from the consequences of the breach of the contract is, that from the nature of the
contract there is an implied condition of the continued existence of the life of the contractor, and,
perhaps in the case of the painter of his eyesight. In the instances just given, the person, the
continued existence of whose life is necessary to the fulfilment of the contract, is himself the
contractor, but that does not seem in itself to be necessary to the application of the principle; as is
illustrated by the following example. In the ordinary form of an apprentice deed the apprentice
binds himself in unqualified terms to "serve until the full end and term of seven years to be fully
complete and ended," during which term it is covenanted that the apprentice his master
"faithfully shall serve," and the father of the apprentice in equally unqualified terms binds
himself for the performance by the apprentice of all and every covenant on his part. (See the
form, 2 Chitty on Pleading, 370, 7th ed. by Greening.) It is undeniable that if the apprentice dies
within the seven years, the covenant of the father that he shall perform his covenant to serve for
seven years is not fulfilled, yet surely it cannot be that an action would lie against the father? Yet
the only reason why it would not is that he is excused because of the apprentice's death.
27
These are instances where the implied condition is of the life of a human being, but there are
others in which the same implication is made as to the continued existence of a thing. For
example, where a contract of sale is made amounting to a bargain and sale, transferring presently
the property in specific chattels, which are to be delivered by the vendor at a future day; there, if
the chattels, without the fault of the vendor, perish in the interval, the purchaser must pay the
price and the vendor is excused from performing his contract to deliver, which has thus become
impossible.
28
That this is the rule of the English law is established by the case of Rugg v. Minett (11 East,
210), where the article that perished before delivery was turpentine, and it was decided that the
vendor was bound to refund the price of all those lots in which the property had not passed; but
was entitled to retain without deduction the price of those lots in which the property had passed,
though they were not delivered, and though in the conditions of sale, which are set out in the
report, there was no express qualification of the promise to deliver on payment. It seems in that
case rather to have been taken for granted than decided that the destruction of the thing sold
before delivery excused the vendor from fulfilling his contract to deliver on payment.
29
This also is the rule in the Civil law, and it is worth noticing that Pothier, in his celebrated Traite
du Contrat de Vente (see Part. 4, § 307, etc.; and Part. 2, ch. 1, sect. 1, art. 4, § 1), treats this as
merely an example of the more general rule that every obligation de certo corpore is
extinguished when the thing ceases to exist. See Blackburn on the Contract of Sale, p. 173.
It may, we think, be safely asserted to be now English law, that in all contracts of loan of chattels
or bailments if the performance of the promise of the borrower or bailee to return the things lent
or bailed, becomes impossible because it has perished, this impossibility (if not arising from the
fault of the borrower or bailee from some risk which he has taken upon himself) excuses the
borrower or bailee from the performance of his promise to redeliver the chattel. The great case of
Coggs v. Bernard (1 Smith's L. C. 171, 5th ed.; 2 L. Raym. 909) is now the leading case on the
law of bailments, and Lord Holt, in that case, referred so much to the Civil law that it might
perhaps be thought that this principle was there derived direct from the civilians, and was not
generally applicable in English law except in the ease of bailments; but the case of Williams v.
Lloyd (W. Jones, 179), above cited, shews that the same law had been already adopted by the
English law as early as The Book of Assizes. The principle seems to us to be that, in contracts in
which the performance depends on the continued existence of a given person or thing, a
condition is implied that the impossibility of performance arising from the perishing of the
person or thing shall excuse the performance.
32
In none of these cases is the promise in words other than positive, nor is there any express
stipulation that the destruction of the person or thing shall excuse the performance; but that
excuse is by law implied, because from the nature of the contract it is apparent that the parties
contracted on the basis of the continued existence of the particular person or chattel. In the
present case, looking at the whole contract, we find that the parties contracted on the basis of the
continued existence of the Music Hall at the time when the concerts were to be given; that being
essential to their performance.
33
We think, therefore, that the Music Hall having ceased to exist, without fault of either party, both
parties are excused, the plaintiffs from taking the gardens and paying the money, the defendants
from performing their promise to give the use of the Hall and Gardens and other things.
Consequently the rule must be absolute to enter the verdict for the defendants.

C R IC K LEW OO D PR O PER TY A N D I NV ESTM EN T TR US T

LTD V LEIG HTO N ’S I N V ESTM EN T TR UST LTD: H L
1945
March 14, 2019 ad min Off Landlord and Tenant ,

References: [1945] AC 221, [1945] 1 All ER 525

Coram: Viscount Simon, Lord Russell, Lord Goddard
Ratio: Wartime regulations were implemented which prohibited the building on land which was
already subject to a building lease which required the lessees to erect several shops.
Held: Even if the doctrine of frustration could apply to a lease, the circumstances did not justify such
application; the lease had not been determined by frustration, and the liability for rent continued. The
regulations were temporary, and the lease was therefore not frustrated. A lease will rarely be
frustrated; it might require a ‘vast convulsion of nature.’ Frustration is ‘apt to vindicate justice
wherever owing to relevant supervening circumstances the enforcement of any contractual
arrangement in its literal terms would produce injustice’
Lord Russell said: ‘The contractual obligations [under a lease] of each party are merely obligations
which are incidental to the relationship of landlord and tenant created by the demise, and which
necessarily vary with the character and duration of the particular lease. It may well be that
circumstances may arise during the currency of the term which render it difficult, or even impossible,
for one party or the other to carry out some of its obligations as landlord or tenant, circumstances
which might afford a defence to a claim for damages for their breach, but the lease would remain.’
Jurisdiction: England and Wales