Any commercial lawyers here?

[elise2000]

Just a quick question, without going into all the details.

We had a contract to provide a service at an event. The cancellation terms were full payment due if less than 30 days beforehand.

The event was cancelled due to the client being ill two weeks beforehand.

We sent him a bill but he said he didn’t think he should pay as the circumstances were out of his control. He’s now citing specifically the frustrated contracts act of 1943.

Has anyone any experience of this?

Thanks

[pghstochaj]

I’m not a lawyer - you should really engage a lawyer for advice.

However, I work in contract administration.

I did not know of this act but clearly the co tract has not been frustrated, he cancelled. There is a provision and mechanism of what happens when he cancels under the contract.

Abta website has a section on this as companies considered applying it during COVID:

Is it too late to frustrate?

A contract can only be cancelled, or frustrated, once. We need to consider:

a) if either party has cancelled (or tried to) the contract previously; and if so
b) whether they did so before or after the ‘frustrating event’ (i.e. the event that we say may have triggered a force majeure clause, or which has frustrated the contract).
The order of events is critical. If, for example, a tour operator cancelled a contract with a hotel in Italy on, say, 1 February 2020, it doesn’t matter if the hotel was later closed down by the Italian authorities on 2 February 2020. The contract cannot be ‘frustrated’ on 2 February 2020 if it was already cancelled on 1 February 2020. In this situation, the tour operator may have been in a better position if they waited one day longer.

The last resort

The courts will only apply frustration as a remedy of last resort, and only then pursuant to the rules (far too detailed to cover here) of the Law Reform (Frustrated Contracts) Act 1943. Contracts are a serious business and an attempt to end them in such circumstances more so.

If the situation is already provided for in the contract, a court will feel no need to consider the application of frustration.

https://www.abta.com/industry-zone/partner-insight...

[anonymous-user]

Him being ill isn’t a frustration event. Frustration is fundamentally about events outside the control of the contracting parties, that fk the contract.

Hence: contracts to watch the coronation were frustrated by the king’s appendicitis. Not by the appendicitis of either party to the contract.

[Austin_Metro]

Here’s a run down of the act:

https://www.lawteacher.net/acts/law-reform-frustra...

I think you should ask the customer to explain how he says it applies.

I’d even question whether the party was frustrated at all - was it booked as just a party, or for him specifically. He cancelled two weeks before … was he still going to be ill?

There’s also provisions dealing with suppliers costs. This is not carte Blanche to escape liability.

[Simpo Two]

Austin_Metro said:

I’d even question whether the party was frustrated at all - was it booked as just a party, or for him specifically. He cancelled two weeks before … was he still going to be ill? ...This is not carte Blanche to escape liability.

And how was he ill and what medical proof does he have?

It's interesting that he would come up with a term that isn't in common parlance or known about. That makes me wonder if he's used that Joker before, or has a pal in the legal industry.

https://en.wikipedia.org/wiki/Frustration_in_Engli...

[elise2000]

Thanks for the replies.

For a little more info, as I guess there’s no harm in it, the event was his wedding.

He was taken ill and therefore wanted to postpone it. He emailed us saying the new date was xyz and was that ok. We said we’re happy to move the booking to a date when we’re available but we were not on the date proposed therefore he had to pay up if going ahead with the unavailable date regardless. This is when he said he didn’t have to as contract frustrated.

[elise2000]

Simpo Two said:

Austin_Metro said:

I’d even question whether the party was frustrated at all - was it booked as just a party, or for him specifically. He cancelled two weeks before … was he still going to be ill? ...This is not carte Blanche to escape liability.

And how was he ill and what medical proof does he have?

It's interesting that he would come up with a term that isn't in common parlance or known about. That makes me wonder if he's used that Joker before, or has a pal in the legal industry.

https://en.wikipedia.org/wiki/Frustration_in_Engli...

He says he was in hospital. But he was well enough to reply to my emails on the day of when the wedding was supposed to be.

I haven’t asked for proof.

I’d actually already started a small claims court case before he quoted this so we’ll see how it pans out.

I’m surprised he’s come up with it as well. I’d never heard of it. Nor has anyone I’ve mentioned it to either

Edited by elise2000 on Saturday 17th June 21:51

[Sheepshanks]

Simpo Two said:

It's interesting that he would come up with a term that isn't in common parlance or known about. That makes me wonder if he's used that Joker before, or has a pal in the legal industry.

As someone else has already alluded, it was widely mentioned during Covid.

[The Count]

Please be mindful that if it comes before an adjudicator, you'll need to present your costs and demonstrate how you are out of pocket.

[elise2000]

The Count said:

Please be mindful that if it comes before an adjudicator, you'll need to present your costs and demonstrate how you are out of pocket.

That’s fine- I’ve had to pay the people that would have been working at the event (all self employed). That is the main cost. The other cost is my time organising it all.

[Austin_Metro]

elise2000 said:

That’s fine- I’ve had to pay the people that would have been working at the event (all self employed). That is the main cost. The other cost is my time organising it all.

Have you scheduled out all these costs and sent it to him. Including your time. I would do so. Gives him a chance to pay … also an evidence trail so it doesn’t pop up at court for the first time.

[elise2000]

Austin_Metro said:

elise2000 said:

That’s fine- I’ve had to pay the people that would have been working at the event (all self employed). That is the main cost. The other cost is my time organising it all.

Have you scheduled out all these costs and sent it to him. Including your time. I would do so. Gives him a chance to pay … also an evidence trail so it doesn’t pop up at court for the first time.

Yep I sent them to him. He ignored the email and obviously didn’t pay.

[Simpo Two]

elise2000 said:

The Count said:

Please be mindful that if it comes before an adjudicator, you'll need to present your costs and demonstrate how you are out of pocket.

That’s fine- I’ve had to pay the people that would have been working at the event (all self employed). That is the main cost. The other cost is my time organising it all.

And the defendant will need to prove his defence.

If his contention was valid, ie that the contract was frustrated, then you could use it not to pay your workers too. 'Sorry chaps, deal's off' etc. But I think you are more honorable than he.

Would Citizen's Advice be any help for a free start?

If it goes legal it will be for the defendant to prove the contract was frustrated. Unless he has some expertise I think he might get in a pickle with that. Under £10K?

https://www.moneysavingexpert.com/reclaim/small-cl...

Edited by Simpo Two on Sunday 18th June 09:31

[Sheepshanks]

It does seem a bit of a can of worms for businesses.

I guess you’ve done this but all the Google hits seem to be COVID related - this one in quite interesting though as went to appeal and largely found in the venue’s favour: https://www.parksquarebarristers.co.uk/news/frustr...

I suppose the Act might also protect the business if they were unable to carry out the contract through no fault of their own.

[Mr_J]

I can offer no advice but if his claim was a valid one I'm left questioning why companies sell wedding insurance and travel insurance that cover this exact eventuality.

[elise2000]

Simpo Two said:

elise2000 said:

The Count said:

Please be mindful that if it comes before an adjudicator, you'll need to present your costs and demonstrate how you are out of pocket.

That’s fine- I’ve had to pay the people that would have been working at the event (all self employed). That is the main cost. The other cost is my time organising it all.

And the defendant will need to prove his defence.

If his contention was valid, ie that the contract was frustrated, then you could use it not to pay your workers too. 'Sorry chaps, deal's off' etc. But I think you are more honorable than he.

Would Citizen's Advice be any help for a free start?

If it goes legal it will be for the defendant to prove the contract was frustrated. Unless he has some expertise I think he might get in a pickle with that. Under £10K?

https://www.moneysavingexpert.com/reclaim/small-cl...

Edited by Simpo Two on Sunday 18th June 09:31

Yep I’ve paid them already. The fault that the event was cancelled last minute isn’t theirs.

Yes, under 10k

I’ve started a small claims court case so we’ll see how it pans out. I’m not worried about it, as worst case scenario it’s a smallish loss, but it’s irritating. And it would make a mockery out of contracts

[elise2000]

Sheepshanks said:

It does seem a bit of a can of worms for businesses.

I guess you’ve done this but all the Google hits seem to be COVID related - this one in quite interesting though as went to appeal and largely found in the venue’s favour: https://www.parksquarebarristers.co.uk/news/frustr...

I suppose the Act might also protect the business if they were unable to carry out the contract through no fault of their own.

Yes. Interestingly during covid we had over 400 cancelled events. We managed to reschedule nearly all of them. Only on one occasion did someone quibble losing a small deposit when cancelling the event outright when they could have postponed.

[elise2000]

Mr_J said:

I can offer no advice but if his claim was a valid one I'm left questioning why companies sell wedding insurance and travel insurance that cover this exact eventuality.

Exactly

[Panamax]

There is, unfortunately, no easy answer.

Frustration has to be impossibility of performance of the contract.

The death of Michael Jackson led to cancellation of a series of gigs at the O2. Those contracts were frustrated by his death. The venue and promoters were almost certainly carrying £m of insurance against that kind of risk. There would be no liability on MJ (i.e. his estate).

If you buy tickets for the Thriller show in London because you particularly like the person who's playing the part of Michael Jackson you can't claim your money back if that person takes a day off and someone else plays the part.

In the case of a wedding does one person's sickness make it impossible to perform the "event" that's been booked? No, food and drink provided by the caterer aren't specifically for one person - the caterer is serving an event that happens to follow a wedding, they aren't serving a specific person.

Some useful guidance on this link but OP should IMO "lawyer up" and see if the contract can be enforced. As others have said, wedding insurance exists for a reason.
https://www.stiveschambers.co.uk/content/uploads/2...

[elise2000]

Panamax said:

There is, unfortunately, no easy answer.

Frustration has to be impossibility of performance of the contract.

The death of Michael Jackson led to cancellation of a series of gigs at the O2. Those contracts were frustrated by his death. The venue and promoters were almost certainly carrying £m of insurance against that kind of risk. There would be no liability on MJ (i.e. his estate).

If you buy tickets for the Thriller show in London because you particularly like the person who's playing the part of Michael Jackson you can't claim your money back if that person takes a day off and someone else plays the part.

In the case of a wedding does one person's sickness make it impossible to perform the "event" that's been booked? No, food and drink provided by the caterer aren't specifically for one person - the caterer is serving an event that happens to follow a wedding, they aren't serving a specific person.

Some useful guidance on this link but OP should IMO "lawyer up" and see if the contract can be enforced. As others have said, wedding insurance exists for a reason.
https://www.stiveschambers.co.uk/content/uploads/2...

I suspect the wedding could have taken place, as he was well enough to be sending emails that day. It could have certainly taken place on another date, but he chose to move it to a date we were booked up (moving from weekday day in June to Saturday in July).

I’ve started small claims court so will see what happens. Not enough money to make it worth involving a lawyer.