Force majeure clause and frustration

Both force majeure clause and frustration are ways to get away from a contract. Force majeure clause is an express clause provided in a contract which specifies the events which, due not to the fault of either parties, no further performance is required under the contract. It is useful to set out clear mechanism in contracts to set out instances which parties are relieved from further obligations. Frustration, on the other hand, is a common law concept without the need for an express provision of an event which is unforeseeable to the parties that render the contract impossible to continue or becomes fundamentally different from the purposes that were agreed in the contract. The events leading to frustration can be natural hazards or accidents or epidemic, but not simply market fluctuations or enforcements becoming more difficult. The contract is then ended immediately and automatically. This can be illustrated in Li Ching Wing v Xuan Yu Xiong [2004] 1 HKC 353, where the outbreak of SARS was considered unforeseeable, but the plaintiff failed to claim frustration because the purpose of a two-year lease was not frustrated because of a 10-day interruption to the use of the property.

If necessary, you can also apply for legal aid. Ms. Ngan is a member of the Legal Aid Department Penal for Criminal, Divorce/Family Law, Employees’ Compensation, Personal Injury, Medical Negligence, and Land Disputes. If legal aid is approved, the aided person has the right to choose a lawyer to represent.


Please feel free to contact us at 69776708 for Mr Lam or make an appointment.

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