Glossary

Frustration

Frustration discharges a contract when an unforeseen event makes performance impossible or something radically different from what was agreed. In England and Wales the test is Davis Contractors Ltd v Fareham UDC [1956] AC 696. Taylor v Caldwell (1863) 3 B & S 826 is the classic illustration: a music hall burned down, so the hire could not go ahead.

Last updated 28 October 2026

If the contract already allocates the risk — a force majeure clause that covers the event — frustration usually stays off the field, because the parties provided for it. The Law Reform (Frustrated Contracts) Act 1943 then deals with money paid and benefits received where frustration does apply. See /clauses/force-majeure first; write the pause, the notice and the walk-away date.

We would rather you name the flood, the venue closure and the 60-day end date in the signed paper than argue Davis Contractors after the fact. Lex puts force majeure in the services agreement and the photo licence. Both sides agree it on one link, so a cancelled shoot has a script.

When is a contract frustrated?

When a post-formation event, not caused by either party, makes performance impossible or radically different from the obligation undertaken — Davis Contractors. Taylor v Caldwell is impossibility: the subject matter is gone. A government ban that makes the work illegal is another route. Extra cost, extra time, or a client who changed their mind is not radical difference.

How is frustration different from force majeure?

Frustration is a common-law doctrine that kills the contract. Force majeure is a clause that pauses named duties while an event lasts, often with a right to end after a set period. If the clause covers the event, the parties have allocated that risk and frustration will rarely apply. Draft the clause you want.

What does the 1943 Act do with money already paid?

The Law Reform (Frustrated Contracts) Act 1943 s.1 says money paid before the frustrating event is recoverable, money that was payable ceases to be payable, and the court may award a just sum for a valuable benefit obtained. A deposit is therefore not automatically “earned” if frustration is the ground.

Can we frustrate a bad bargain?

No. Davis Contractors was a builder who lost money because labour was scarce; the House of Lords held the contract was not frustrated. A job that is more expensive, slower, or less profitable is still the job. Termination for convenience is the off-switch for a change of plan. Force majeure is the off-switch for a named outside event.

A worked example

A venue burns down a week before a branded shoot. The photographer’s contract has a force majeure clause covering fire, with notice, a date move, and a 60-day walk-away. They use that clause. They do not claim frustration. The deposit stays as the clause says. If there had been no force majeure line, Taylor v Caldwell and the 1943 Act would have been the argument instead.

How it shows up in a contract

Sample wording · our own drafting

This clause is without prejudice to the doctrine of frustration. If a Force Majeure Event continues for more than [60] days, either party may terminate this agreement by written notice. Money already due remains due. Any Deposit is dealt with as this clause says and not left to implication.

In Plain English

Force majeure is the first tool. Frustration remains in the background. If the outside event lasts more than 60 days, either side can end the contract. Invoices already due are still due. The deposit follows this clause, not an unspoken rule.

Common mistakes

  • Calling a difficult job, a staff shortage or a lost profit “frustration”. Davis Contractors is against you.
  • Ignoring a force majeure clause that already covers the event, then running a frustration argument that the clause occupies.
  • Assuming a deposit is always kept, or always refunded, without reading the 1943 Act or the clause.
  • Leaving dates, notice and a walk-away out of force majeure so a closed venue hangs the job open.

What the legislation says

  • Where a contract is frustrated, money paid before the frustrating event is recoverable, money payable before that event ceases to be payable, and the court may allow a just sum for a valuable benefit obtained, subject to the Act.

    Source: Law Reform (Frustrated Contracts) Act 1943, s.1Checked 28 October 2026Pending lawyer review

Sources

Frequently asked questions

What is frustration of a contract?

Discharge of the contract when an unforeseen event makes performance impossible or radically different (Davis Contractors v Fareham UDC [1956] AC 696). A bad bargain is not frustration.

How is it different from force majeure?

Frustration is common-law and kills the contract. Force majeure is a clause that pauses named duties. If the clause covers the event, use the clause. See /glossary/force-majeure.

What happens to money already paid?

The Law Reform (Frustrated Contracts) Act 1943 s.1 lets money paid be recovered and allows a just sum for a valuable benefit, subject to the Act. A clause that says what happens to the deposit is clearer.

Is extra cost or delay frustration?

No. Davis Contractors was a builder who lost money to scarce labour; the contract stood. Use force majeure or termination for convenience for the risks you can name.

Related

The legal wording governsLast reviewed 28 October 2026Pending lawyer review