A lot of people normally misuse these words – frustration and force majeure during periods like our world finds itself. I want to draw the differences between these two principles as some parties will be invoking any of them in this COVID-19 era for a breach or unfulfillment of an undertaking by one party.
Now, Frustration is where the execution of a contract becomes impossible by reason of subsequent events. These events are normally not anticipated by the parties to the contract. The effect of these events operates to discharge the parties from the subsequent breach.
On the other hand, Force Majeure is a specific contract clause. The said clause only applies when the parties have elected to include it within the contract. The contract itself will normally continue to subsist through the application of the clause elected by the parties.
However, it’s instructive to note at this juncture that, the legal effect of force majeure is widely similar to that of frustration thus, it exculpates the parties from breach only if performance will be impossible because of certain specific events.
Force Majeure is therefore not an automatic terminator of a contractual agreement as frustration is.
It can be canvassed from the above submissions that, the best principle to invoke for non-performance of a contract because of coronavirus in my respectful view is frustration basically for want of specific contract clause and not force majeure.
Faculty of Law, UPSA