Courts of Summary Jurisdiction
| Published date | 01 July 1947 |
| Date | 01 July 1947 |
| DOI | 10.1177/002201834701100301 |
| Subject Matter | Article |
The
Journal
of Criminal
Law
Vor,
XI.
No.3.
]UI,Y·SEPTEMBER, 1947
Courts of Summary Jurisdiction
'FRUSTRATION'
OF A CONTRACT
T
HE
prohibition on
the
use of electric power
by
factories,
imposed
by
the
Government early this year, was
the
background of a
"dispute"
within
the
meaning of
the
Employers
and
Workmen Act, 1875, which was heard
by
Mr.
Paul
Bennett,
at
the
Marlborough Street Magistrates'
Court. The workmen concerned were all employed
by
a
Limited Company engaged in making plastic ware,
and
their
claim arose following
their
dismissal without notice
on
the
morning on which
the
fuel cuts were published.
They alleged
that
they
were employed on a weekly basis
and
claimed aweek's wages in lieu of notice. There was
no written contract of employment between
the
men
and
the
firm,
and
the
first contention of
the
firm was
that
the
men were employed
not
on a weekly basis,
but
by
the
hour.
The more interesting point, however, was whether, assuming
that
the
magistrate found as a fact
that
the
men were em-
ployed
by
the
week,
the
firm was
entitled
to
say
that
the
contract was
"frustrated".
Counsel for
the
firm referred
to
the
leading case on
frustration,
that
of
the
Tamplin Steamship
Co.
Ltd. v.
Anglo-Mexican Petroleum Products
Co.
Ltd.
(1916)
2A.C.
397,
and
quoted from
the
judgement of
Earl
Loreburn
(p.402) :
"When
alawful contract has been made
and
there
is no default, aCourt of law has no power
to
discharge
either
party
from
the
performance of
it
unless either
the
rights
of someone else or some Act of
Parliament
give
the
necessary jurisdiction.
But
aCourt
can
and
ought
to
p225
226
THE
JOURNAL OF CRIMINAL LAW
examine
the
contract
and
the
circumstances
in
which
it
was made.
not
of course
to
vary.
but
only
to
explain it.
in
order
to
see whether or
not
from
the
nature
of
it
the
parties
must
have made
their
bargain on
the
footing
that
apar-
ticular thing or
state
of things would continue
to
exist.
And if
they
must
have done so,
then
a
term
to
that
effect
will be implied, though
it
be
not
expressed in
the
contract".
Apassage from
the
judgement of Viscount
Haldane
was
also referred to (p.
406):
"When
people
enter
into
a con-
tract
which is dependent for
the
possibility of
its
perform-
ance on
the
continued availability of a specific thing.
and
that
availability comes to
an
end
by
reason of circum-
stances beyond
the
control of
the
parties.
the
contract is
prima facie regarded as dissolved. The contingency which
has arisen is treated,
in
the
absence of a
contrary
intention
made plain. as being one
about
which no bargain
at
all was
made".
The machinery used in making
the
plastic was all
worked
by
electricity.
and
it
was urged
that
avital
term
of
the
contract was
that
electrio power should be available
and
that
in
its
absence
the
contract was
brought
to
an
end.
On behalf of
the
plaintiffs
it
was urged
that
the
case
of Devonald v. Rosser 0- Sons,
(1906)
2
K.B.
728. showed
that
the
Company should have found work for
the
com-
plainants
in
another
part
of
the
faotory (the plastic-ware
department
was only one section of
the
Company's work-
shop,
and
work of a somewhat similar nature. which did
not
require electric power. was carried
out
in
other depart-
ments). The circumstances of
the
case quoted were.
however, very different from those of
the
case before
the
court:
in
that
case
the
plaintiff was employed
on
piece-
work
and
was
not
to
be discharged
without
a
month's
notice;
the
defendants closed
their
works as
they
found
that
they
could
not
run
them
at
aprofit.
and
subsequently
gave
the
plaintiff a
month's
notice:
it
was
held
that
there
was
an
implied undertaking
by
the
defendants
to
provide
the
plaintiff with areasonable
amount
of work so long as
the
employment lasted.
After reviewing
the
evidence
and
arguments adduced
before him,
the
magistrate said
that
he was
not
satisfied
that
the
plaintiffs were employed on a weekly basis,
and
on
that
ground
the
claim
must
fail;
but
he added
that
had
he
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