Frustration of Contract and Force Majeure clauses under the Australian legal framework.本文将从诉讼的角度对澳大利亚合同法中的落空原则和不可抗力条款进行概述。
This article will provide an overview of the doctrine of frustration in Australian contract law and force majeure clauses from a litigation perspective.
The doctrine of changed circumstances in civil law and their differences
The doctrine of changed circumstances is an important contractual principal in civil law jurisdictions. It refers to the situation where a change to the fundamental circumstances of the contract occurs without the fault of either party, and if the continuance of the agreement delivers an unfair result, the doctrine will allow for a variation of the contractual terms.
The significance of the doctrine lies in the courts’ ability to alter or terminate the contract so as to redistribute the risks and rewards between the parties.
Although similarities exist between the doctrine of change of circumstances and the doctrine of frustration of contract, the following differences are present:
1. Difference in the width of application: more situations are applicable to the doctrine of frustration of contract than change of circumstances. The nature of the civil law doctrine differs from force majeure events and does not include incidents such as the death or incapacity of either parties, the destruction of the subject matter, or the performance of the contract becoming impossible or illegal.
2. Difference in standards: unfairness is the objective criterion for judging changes in circumstances, whereas the contract may be frustrated due to the occurrence of an event resulting in the performance of the contract becoming impossible or commercially unfeasible.
3. Difference in its effect on the agreement: if a contract is frustrated, it will be terminated, whereas the application of the doctrine of change of circumstances will not necessarily result in the termination of the contract, but rather it provides a party with the right to request the court to alter or terminate the contract.
4. Difference in the parties’ liabilities: a frustration of contract results in the parties being discharged from their future obligations, whilst a party seeking reliance on the doctrine of change in circumstances remains obligated to the other party for restitution or damages。
What is the doctrine of frustration
风险分摊是合同签署的关键目的之一。然而，合同的履行有时可能会受到事件的干扰，且这种事件不受任何一方控制。A key purpose of contractual agreements is risk allocation, however, the performance of a contract may at times be disrupted by events outside the control of the either party.考虑到这些风险，合同双方可能会明确规定，一旦出现某些破坏／落空事件，他们将会作何安排。在没有明文规定的情况下，我们假定这种风险已默认地分配给受影响的一方，如此便导致了受影响一方仍然需要履行合同规定的任何未尽义务。In contemplation of such risks, the parties may expressly provide for what is to happen should certain disruptive/frustrating events occur. In the absence of express provision, it can be assumed that this risk has been implicitly allocated to the party affected, the result of which is that party will remain liable to perform any outstanding obligations under contract.然而，上述解释或推断可能不是在所有情况下都合理，特别是在那些远远超出双方在合同签订时能够预期到的情况下。因此，双方对落空事件的推断可能在合同中是空白的，此时落空原则为合同的不履行提供了依据。However, the above interpretation or inference may not be plausible or reasonable under all circumstances, especially those going well beyond what the parties could have anticipated at the time of contract. As such, the between inference may then be that there is a gap in the parties’ contract in respect to the frustrating event, and it is then that the doctrine of frustration provides an excuse for non-performance.【1】在《合同法原理》一书中，罗伯逊和帕特森已经阐述了这一合同落空原则:“如果要求解除合同义务的一方没有过错，在订立合同后发生的事件使当事人义务的履行，与当事人根据合同所承担的义务发生根本上或本质上的不同，则合同义务解除。”This doctrine of frustration of contract has been articulated by Robertson and Paterson in Principles of Contract Law as:“the discharge of contractual obligations where, without the fault of the party seeking discharge, events occurring after the contract is made would render performance of the contract radically or fundamentally different from that which was undertaken by the parties under their contract.”
The doctrine of frustration
普通法法院大多对此原则持谨慎的态度。澳洲高等法院批准了下列事项:当按照法律，合同义务已无法履行，因为要求履行的情况将使其与根据合同所承担的义务完全不同，且任何一方都没有过错时，落空事件就发生了。Non haec in foedera veni —— 这不是我承诺要做的事。Courts in common law jurisdictions mostly have taken a narrow view of the doctrine, with the High Court of Australia approving the following:Frustration occurs whenever the law recognises that without the fault of either party a contractual obligation has become incapable of being performed because the circumstances in which performance is called for would render it a thing radically different from that which was undertaken by the contract. Non haec in foedera veni. It was not this that I promised to do.因此，从合同解释的角度来看，审查所有有关的证据，以确定当事各方实际上承诺履行的内容，是有必要的。这种审查需要根据当时的情况对合同条款进行解释。Hence, from a contract construction perspective, it then becomes necessary to examine all relevant evidence in order to determine what it is that the parties in fact undertook to perform. Such an examination will entail the interpretation of the terms of the contract in light of the surrounding circumstances.【2】实践中，落空事件包含了这样的情况:履行变得完全不可能，或者后期的履行失去商业价值。然而，单纯的困难、不便或物质损失通常不足以落空合同。In practice, frustration encompass cases in which performance becomes literally impossible or where future performance has been rendered commercially unfeasible. However, mere hardship, inconvenience or material loss are generally not sufficient to frustrate a contract.因此，一份合同不会仅仅因为一方做了一笔糟糕的交易，或者因为一方预期或希望的结果没有最终实现而落空。这些风险是商业中固有的。As such, a contract will not be frustrated merely because one party has made a bad bargain or because the results that one party had expected or hoped for did not eventuate. 【3】 These risks are inherent in commerce.-导致或可能会导致合同严重逾期（而非短暂逾期）的事件，且这种事件会致使合同履行不能或失去商业价值。（编者注：在评估逾期时，也要考虑可能逾期的时长与合同剩余期限之间的关系。）-标的物的毁灭、合同成立的基础消失或使合同得以履行所必需的情况消失。The following circumstances have been found to frustrate a contract:- Illegality, where the performance of the contract becomes illegal.- Events causing, or likely to cause, an inordinate delay as opposed to a mere delay, resulting in the performance of the contract becoming impossible or commercially unfeasible. 【4】- Destruction of the subject matter, disappearance of the basis of the contract or the state of affairs necessary to enable the contract to be performed.【5】- Death or incapacity of a party.
Limitations on the doctrine
落空原则规范了各方对风险的分配，以下是三个主要限制:1.缔约双方没有在其协定中规定发生落空事件的风险。如果当事各方已预料到落空事件，落空事件的继续履行将不会本质上与所设想的情况有所不同。如果双方可以预见到落空事件，则可以默认为双方已确定将风险分配给受影响的一方。3.落空事件不能是由以落空原则为依据的一方的过失造成的。法院并没有精确地定义“过失”，可能包括“以落空原则为辩论理由的一方”的疏忽。注意，另一无过错方也可以这一原则为论证依据。The doctrine of frustration regulates the parties’ allocation of risks, following this, 3 main limitations are in place:1. The contracting parties must not have provided for the risk of the frustrating event in their agreement.If the frustrating event has been anticipated by the parties, its continued performance will not be radically different from those contemplated.2. At the time of contract, the frustrating event must not have been foreseeable by the parties.If the frustrating event is foreseeable by the parties, then it can be implied that the parties have determined that the risk is to be allocated to the party affected.3. The frustrating event must not have been caused by the fault of the party seeking to rely on the doctrine.The courts have not precisely defined ‘fault’ and may include negligence on the part of the party seeking on its reliance. We note the other innocent party is not precluded from relying on the doctrine.
Express provision of frustrating events in the contract
第一个限制说明了，如果合同中已经规定了该事件的风险，则合同不会落空。这种风险可以通过以下几种方式来体现:The first limitation states that a contract will not be frustrated if the risk of the event has been provided for in the contract. This risk can be provided for in a number of ways:- Through express agreement that one party will bear the risk of the event;- Agreement that the risk is to be borne equally or shared in unequal proportions between the parties; or- Through the inclusion of a force majeure clause.不可抗力条款是合同中一种明示条款，用以规定特定事件的影响。不可抗力条款可以终止合同；更常见的，中止合同的履行。除非事件持续了一段时间并且/或在此段时间内承担风险的一方无法弥补，否则合同不会终止。A force majeure clause is an express agreement in the contract seeking to codify the effect of specified events. The clause can either terminate the contract, or more commonly, suspends the performance of the contract by providing that the contract is not to come to an end unless the event has continued for a specified period of time and/or is incapable of remedy by the risk bearing party within this time.1. 不可抗力事件的定义，或包括的特定范围的定义(如天灾、政府行为、战争和内乱、生产、储存或运输设施的毁坏、疫情、公共事业的失败等);2. 一方因不可抗力事件给另一方造成损失的，不承担赔偿责任;3. 受不可抗力事件影响的一方必须将因不可抗力事件而可能发生的任何延误通知另一方;4. 受影响的一方必须尽一切合理努力履行其合同责任；以及5. 任何一方因不可抗力事件造成的延期超过30日的，可以解除本合同。Examples of such clauses will commonly include aspects such as:i. A specified scope or definition of what a force majeure event is or includes (such as acts of God, acts of any Government, war and civil unrest, destruction of production, storage or delivery facilities, epidemics, failure of public utilities etcetera);ii. That neither party is liable to the other party for any loss incurred by reason of a Force Majeure Event;iii. The party affected by a Force Majeure Event must notify the other party of any anticipated delay due to that Force Majeure Event;iv. That the party affected must use all reasonable efforts to perform its liability contract; andv. That either party may terminate the contract if the delay due to the Force Majeure Event continues for a period in excess of 30 days.综上所述，当发生落空事件时，以落空原则为依据的一方需要考虑:2. 一方能否证明由于该事件的发生导致合同履行不能或失去商业价值。Following the above, when a frustrating event occurs, the party seeking reliance need to consider:i. whether the disruptive event comes within the width of the clause; andii. whether the party can prove that their ability to perform the contract was made impossible or commercially unfeasible by the event.为了评估条款的法典化效果，适用以下合同解释的一般规则:a) 逆编者释义原则，是指对有歧义的的合同条款，原则上将按照对编写者不利的情况进行解释；以及b) 同类原则，即当合约条文先列举了一些特定的事项，其后再用概括性用词(general wording)附加一般事项时，后者解释只能局限于与前面列明同类性质的事项。In order to assess the codified effect of the clause, the normal rules of contract construction are to be applied:a) The contra proferentum rule where the clause is to be construed narrowly, and in the event of any ambiguity, to be interpreted against the interests of the party that created, introduced or drafted the clause; andb) The ejusdem generis rule, when general wording follows a specific list of events, the general wording will be interpreted in light of the specific list of events. Such as when a catch all phrase follows a list of specific events, the catch all phrase is limited to events which are analogous to the listed events.即便受影响方认为该落空事件在条款的考虑范围内，受影响方仍需证明其已尽一切合理努力以继续履行其在本协议项下的义务，而该落空事件已使其履行义务变得不可能或失去商业价值。If the affected party is of the view that the frustrating event is within the contemplation of the clause, the affected party is still required to demonstrate that it has used all reasonable efforts to continue to perform its liabilities under the agreement and that the frustrating event has made the performance of their liability impossible or commercially unfeasible.此外，当事各方同意了一份落空事件的具体清单，这一事实可能支持这样的结论，即当事各方打算由受影响的一方承担未指明的事件的风险。Further, the fact that the parties have agreed to a specific list of frustrating events may support the conclusion that the parties intend for the risk of events which are not specified to be borne by the party affected.
Consequences of Frustration
一般来说，一旦合同落空，合同即会终止，双方也就不再履行后期的义务。然而，规定双方未来关系的条款可能继续存在，例如重新谈判或仲裁的义务。Generally, once the contract is frustrated, the contract is brought to an end and the parties are discharged from future obligations. However, clauses which regulates the parties’ future relationship may survive, such as an obligation to renegotiate or to arbitrate.在普通法上，落空事件发生前已经产生的权利和义务将依旧存在。然而，澳洲多个司法管辖区已制定立法，以应对普通法立场不能令人满意的情况，详情请参阅:-《2012年澳大利亚消费者法和公平交易法》(VIC)At common law, rights and liabilities which have unconditionally accrued prior to the time of the frustrating event will remain in place. However, legislation has been enacted in several Australian jurisdictions seeking to deal with circumstances where the common law position will deliver an unsatisfactory result, see:- Frustrated Contracts Act 1978 (NSW)- Frustrated Contracts Act 1988 (SA), and- Australian Consumer Law and Fair Trading Act 2012 (VIC)【1】Treitel, Frustration and Force Majeure.【3】Robertson and Paterson, Principles of Contract Law 6th edition (2020).【4】In assessing delay, it is relevant to consider the probable length of delay with the remaining length of contract.【5】Codelfa Construction Pty Ltd v State Rail Authority of New South Wales (1982) 149 CLR 337.无论您想在澳大利亚设立子公司还是收购澳大利亚公司股权或资产，文康-君益诚涉澳法律团队将为中国投资者提供最专业且全面的一站式服务。
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