In the application of the doctrine, the mere difficulty of carrying out the contract due to the supervening event does not automatically confer the application of the doctrine.
So, the question that remains to be asked is what kind of situations will not qualify as frustrating events? The Doctrine of Frustration will not apply where the supervening event, is one which the law would not regard as so fundamental as to strike at the root of the agreement. Secondly, the terms of the agreement reveal that the parties contemplated the possibility of such an intervening event arising. Finally, the doctrine will definitely not apply where one of the parties had deliberately brought about the supervening event by his own choice, as this will amount to deriving benefit from one’s illegal actions. This also implies that where a breach of the contract has occurred before the frustrating event occurs, the Court will treat the contract as having been breached and not frustrated.
When the defense of frustration is raised, the party relying on it has the onus to prove as gleaned from the principle of “Him who asserts must prove”. Similarly, the other side can also counter that the frustrating event does not suffice to warrant the Court pronouncing that the contract has been discharged.
Another means of defending one’s self against a plea of frustration is to prove that the supervening never actually occurred.
DOCTRINE OF FRUSTRATION AND FORCE MAJEURE
The Court of Appeal in Globe Spinning Mills Nigeria Plc V. Reliance Textile Industries Limited, defined Force Majeure as a common contract clause that provides that one or both parties can cancel a contract, or be excused from either partial or full performance of the contract agreement if certain specified events or events beyond the parties’ control occur. The Force Majeure clause in the agreement usually specifies the type of events which will be supervening enough to render the contract voidable. It has the same effect as a contract being frustrated. The difference however is that whereas Frustration brings the contract to an end, Force Majeure allows parties to contractually regulate the impact of the supervening event.
Naturally, if a Force Majeure event is not particularly covered by a contract, the injured party may claim Frustration of the contract. However, if a particular incident is clearly covered as a Force Majeure event under a contract, Frustration of the contract cannot be automatically asserted. The Force Majeure clause will merely suspend the doing of an obligation until a better time.
THE COVID-19 IMPLICATIONS ON CONTRACTS AND THE WAY FORWARD
The impact of the Covid-19 pandemic has been felt in every sector of human life. It is safe and right to assume that during the period when the country was on lockdown, many contractual obligations could not be carried out and as a result has birthed litigation issues. It is important to note that the occurrence of the Covid-19 pandemic falls within the “Unforeseeable” event. Irrespective of the foregoing, not all contracts were affected by the pandemic.
Not every type of contract could use the Covid-19 pandemic as a defense for their lack of contractual obligations because, in the case of some contracts, the pandemic was not sufficient enough to strike to the root of the matter.
Examples of contracts which would not have been frustrated by the COVID-19 pandemic include but are not limited to; Tenancy agreements, Leases, simple online contracts such as Web developers, Graphic designers, Copyrighters, Solicitors agreement, etc. However, contracts bothering on event planning, logistics, construction etc., would definitely have suffered due to the restriction on movement and outdoor gatherings. The pandemic is one of the biggest unforeseeable events of this 21st century. It, therefore, has become imperative that parties to an agreement must ensure that moving forward every form of vitiating event, occurrence or happening is included in the Force Majeure clause in a bid to save the contract from frustration and the consequences of who is to bear liabilities.
CONCLUSION
From the foregoing, it is evident that the mere occurrence of an event without more does not in itself avail a party from fulfilling their contractual obligation, as each contract is treated based on its peculiar fact and circumstance. Furthermore, there is a need for contracting parties to be guided by wisdom and a sound understanding of the law and peculiarity of the contract, in drafting their Force Majeure clauses in a bid to evade contractual breach.
As a result, contracts must be thoroughly scrutinized before contractual parties renege on their commitments due to Frustration or declare Force Majeure. Given the occurrence of the pandemic in 2019 and the lockdown of 2020, it would not be out of place if Force Majeure clauses are drafted with such future possibilities in mind, no matter how ridiculous it may seem.