Escape Routes From Aviation Contracts ' COVID-19, Frustration And Force Majeure

• Published date: 03 August 2020
• Law Firm: Quadrant Chambers
• Author: Mr Mark Stiggelbout and Emily McWilliams

As the COVID-19 pandemic continues to wreak unprecedented havoc in the aviation industry, affected commercial parties will increasingly be looking for escape routes from onerous contractual obligations. Two obvious contenders are the common law doctrine of frustration and any express force majeure provisions. Within these, two specific issues seem ripe for argument in the coming months.

Frustration - Wait and See?

Under the common law of England and Wales, a contract is frustrated - and the parties are discharged from further performance thereunder - if a post-contractual event renders its fulfilment physically or commercially impossible or makes the obligation to perform radically different from that originally undertaken: Davis Contractors v. Fareham [1956] A.C. 696. That test is well established, albeit that its application to specific factual circumstances is often far from...