Denationalization
| DOI | http://doi.org/10.1111/j.1468-2230.1942.tb02866.x |
| Published date | 01 December 1942 |
| Author | Paul Abel |
| Date | 01 December 1942 |
DE
NATIONAL1
Z
ATlON
57
as
we asked
a
little time back, before we were fobbed
off
with the talk of
frustration and implied terms.)
Is
is not clear that ultimately the answer
that must be given
us
is that the buyers were discharged because they
did not get what they bargained for
?
In other words, because there was
a
failure
of
consideration? In
a
context like this, “frustration”
means
failure of consideration, and the law would be
a
lot clearer if we were
to
call it by that name. In the
Fibvosn
case the
House
of
Lords assumes that
the contract is discharged for frustration, and that, the contract thus
being
at
an end, the buyer recovers his payment on the ground of failure
of
coqsideration.
If
we were to say instead that the buyer’s obligation is
discharged for failure of consideration, and that he recovers his payment
for failure of consideration, we should sce instantly.that there are not
two principles involved, but one, namely failure of consideration.
It
is
the failure of consideration that both discharges the buyer’s executory
obligation and gives him a right
to
restitution
of
money paid.8 In the
course of
a
friendly and courteous review of McElroy’s
Impossibility
of
Perjormance
in
the last number of this REVIEW (Vol.
V,
p.
279),
Professor
Chorley wrote
:
“The tide has set
so
strongly against this thesis, attractive
though
it
is, that it may be doubted whether even the House of Lords
can turn the flow.” The submission
I
respectfully make is that the tide
against the, thesis is mainly
a
tide of words. Instead of
using
the phrase
“failure of consideration,”
as
they used to do, the, courts have taken to
describing the payer’s obligation
as
discharged for
“
frustration
”
(the
word “frustration” having other applications besides this one, with which
I
am not here concerned).
It
still remains to
be
demonstrated that there
is
a
difference
of
meaning between the two expressions in this context.
GLANVILLE
L.
WILLIAMS.
I
am aware that there is one difference
between
the failure
of
consideration
that discharges an executory obligation and the failure of consideration
that
gives a right to restitution. This is that whereas the receipt
of
part
of
the benefit
does
not
(according to
the
weight
of
authority) prevent the discharge of an execu-
tory obligation (since “the failure
of
part
of
an entire consideration is a failure
of
the whole consideration
”).
the receipt of part
of
the benefit is enough (according
to the weight
of
authority) to exclude quasi-contractual recovery. However, it
does not seem to me that this difference affects the identity between
the
two
branches
of
the law in other respects.
DENAT
I
ONALIZAT ION
I.
SOME
HISTORICAL
FACTS
I.
The laws of many States contain provisions concerning the
loss
of
nationality’ by emigration without consent
of
the authorities, by absence
of
long standing, by entry into the services and particularly the military
services
of
another Power, etc. In all these cases, the loss of nationality
is
caused
by
voluntary
acts
of the persons concerned. The application
of thee provisions
was
a
very restricted one. They were applied ir:
sporadic individual cases only; the number of persons who had been
declared stateless
by
virtue of such provisions has been
at
all
times
The terms “nationality” and “national
”
are used
in
these lines in the same
sense
as
the
German
terms
“
Staatsangehoerigkeit
”
and
“
Staatsangehoeriger.”
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