Frustration of Contract and Force Majeure clauses under the Australian legal framework.本文將從訴訟的角度對澳大利亞合同法中的落空原則和不可抗力條款進行概述。
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
風險分攤是合同簽署的關鍵目的之一。然而，合同的履行有時可能會受到事件的干擾，且這種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.考慮到這些風險，合同雙方可能會明確規定，一旦出現某些破壞／落空事件，他們將會作何安排。在沒有明文規定的情況下，我們假定這種風險已默認地分配給受影響的一方，如此便導致了受影響一方仍然需要履行合同規定的任何未盡義務。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，上述解釋或推斷可能不是在所有情況下都合理，特別是在那些遠遠超出雙方在合同簽訂時能夠預期到的情況下。因此，雙方對落空事件的推斷可能在合同中是空白的，此時落空原則為合同的不履行提供了依據。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》一書中，羅伯遜和帕特森已經闡述了這一合同落空原則:“如果要求解除合同義務的一方沒有過錯，在訂立合同后發生的事件使當事人義務的履行，與當事人根據合同所承擔的義務發生根本上或本質上的不同，則合同義務解除?！?/span>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
普通法法院大多對此原則持謹慎的態度。澳洲高等法院批準了下列事項:當按照法律，合同義務已無法履行，因為要求履行的情況將使其與根據合同所承擔的義務完全不同，且任何一方都沒有過錯時，落空事件就發生了。Non haec in foedera veni —— 這不是我承諾要做的事。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，從合同解釋的角度來看，審查所有有關的證據，以確定當事各方實際上承諾履行的內容，是有必要的。這種審查需要根據當時的情況對合同條款進行解釋。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】實踐中，落空事件包含了這樣的情況:履行變得完全不可能，或者后期的履行失去商業價值。然而，單純的困難、不便或物質損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，一份合同不會僅僅因為一方做了一筆糟糕的交易，或者因為一方預期或希望的結果沒有最終實現而落空。這些風險是商業中固有的。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.-導致或可能會導致合同嚴重逾期（而非短暫逾期）的事件，且這種事件會致使合同履行不能或失去商業價值。（編者注：在評估逾期時，也要考慮可能逾期的時長與合同剩余期限之間的關系。）-標的物的毀滅、合同成立的基礎消失或使合同得以履行所必需的情況消失。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
落空原則規范了各方對風險的分配，以下是三個主要限制:1.締約雙方沒有在其協定中規定發生落空事件的風險。如果當事各方已預料到落空事件，落空事件的繼續履行將不會本質上與所設想的情況有所不同。如果雙方可以預見到落空事件，則可以默認為雙方已確定將風險分配給受影響的一方。3.落空事件不能是由以落空原則為依據的一方的過失造成的。法院并沒有精確地定義“過失”，可能包括“以落空原則為辯論理由的一方”的疏忽。注意，另一無過錯方也可以這一原則為論證依據。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
第一個限制說明了，如果合同中已經規定了該事件的風險，則合同不會落空。這種風險可以通過以下幾種方式來體現: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.不可抗力條款是合同中一種明示條款，用以規定特定事件的影響。不可抗力條款可以終止合同；更常見的，中止合同的履行。除非事件持續了一段時間并且/或在此段時間內承擔風險的一方無法彌補，否則合同不會終止。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. 不可抗力事件的定義，或包括的特定范圍的定義(如天災、政府行為、戰爭和內亂、生產、儲存或運輸設施的毀壞、疫情、公共事業的失敗等);2. 一方因不可抗力事件給另一方造成損失的，不承擔賠償責任;3. 受不可抗力事件影響的一方必須將因不可抗力事件而可能發生的任何延誤通知另一方;4. 受影響的一方必須盡一切合理努力履行其合同責任；以及5. 任何一方因不可抗力事件造成的延期超過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.綜上所述，當發生落空事件時，以落空原則為依據的一方需要考慮:2. 一方能否證明由于該事件的發生導致合同履行不能或失去商業價值。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.為了評估條款的法典化效果，適用以下合同解釋的一般規則:a) 逆編者釋義原則，是指對有歧義的的合同條款，原則上將按照對編寫者不利的情況進行解釋；以及b) 同類原則，即當合約條文先列舉了一些特定的事項，其后再用概括性用詞(general wording)附加一般事項時，后者解釋只能局限于與前面列明同類性質的事項。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.即便受影響方認為該落空事件在條款的考慮范圍內，受影響方仍需證明其已盡一切合理努力以繼續履行其在本協議項下的義務，而該落空事件已使其履行義務變得不可能或失去商業價值。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，當事各方同意了一份落空事件的具體清單，這一事實可能支持這樣的結論，即當事各方打算由受影響的一方承擔未指明的事件的風險。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
一般來說，一旦合同落空，合同即會終止，雙方也就不再履行后期的義務。然而，規定雙方未來關系的條款可能繼續存在，例如重新談判或仲裁的義務。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，落空事件發生前已經產生的權利和義務將依舊存在。然而，澳洲多個司法管轄區已制定立法，以應對普通法立場不能令人滿意的情況，詳情請參閱:-《2012年澳大利亞消費者法和公平交易法》(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.無論您想在澳大利亞設立子公司還是收購澳大利亞公司股權或資產，文康-君益誠涉澳法律團隊將為中國投資者提供最專業且全面的一站式服務。
通過與從事雙邊貿易和跨境投資的中澳跨國公司長期合作，我們擁有豐富的法律服務經驗。Whether you are seeking to establish a local Australian subsidiary or acquiring an interest in an Australian company or asset, Wincon – JYC Law Group’s Australia Legal Team provides an integrated end to end solution to Chinese investors. Our experience comes from a history of working with Chinese and Australian multinationals engaged in bilateral trade and cross border investments.