Provision to the application
1st this
Ordinance.
if it considers it just to do so having regard to all the circumstances of the case, allow him to retain or, as the case may be, recover the whole or any part of the sums so paid or payable, not being an amount in excess of the expenses so incurred.
(3) Where any party to the contract has, by reason of anything done by any other party thereto in, or for the purpose of, the performance of the contract, obtained a valuable benefit (other than a payment of money to which the last foregoing sub-section applies) before the time of discharge, there shall be recoverable from him by the said other party euch sura (if any), not exceeding the value of the said benefit to the party obtaining it, as the court considers just, having regard to all the cireu- stances of the case and, in particular,
(a) the amount of any expenses incurred before the time of discharge by the benefited party in, or for the purpose of, the performance of the contract, including any sums paid or payable by him to any other party in pursuance of the contract and retained or recoverable by that party under the last foregoing sub-section; and
(b) the effect, în relation to the said benefit, of the circumstances giving rise to the frustration of the contract.
(4) In estimating, for the purposes of the foregoing provisions of this section, the amount of any expenses incurred by any party to the contract, the court may, without prejudice ta the generality of the said provisions, include such anto us appears to be reasonable in respect of overhead expensas and in respect of any work or services performed personally by the said party.
(5) In considering whether any sum ought to be recovered or retained under the foregoing provisions of this section by any party to the contract, the court shall not take into account any sums which have, by reason of the circumstances giving rise to Me frustration of the contract, become payable to that party under any contract of insurance unless there was an obligation to insure imposed by an express term of the frustrated contract or by or under any enactment.
(6) Where any person has assured obligations under the contract in consideration of the conferring of a benefit by any other party to the contract upon any other person, whether u party to the contract or not, the court may, if in all the circumstances of the case it considers it just to do so, treat for the purposes of sub-section (3) of this section any benefit so conferred as a benefit obtained by the person who has assumed the obligations as aforesaid.
4. (1) This Ordinance shall save as is hereinafter provided apply to contracts whether made before or after the commencement of this Ordinance, as respects which the time of discharge is on or after the 8th of December, 1941, but not to contracts as respects which the time of discharge is before the said date.
(2) This Ordinance shall apply to contracts to which the Crown is a party in like manner as to contracts between subjects.
3
(3) Where any contract to which this Ordinance applies contains any provision which, upon the true construction of the contract, is intended to have effect in the event of circumstances arising which operate, or would but for the said provision operate, to frustrate the contract, or is intended to have offect whether such circumstances arise or not, the court shall give effect to the said provision and shall only give effect to the foregoing section of this Ordinance to such extent, if any, as appears to the court to be consistent with the said provision.
(4) Where it appears to the court that a part of any contract to which this Ordinance applies can properly be severed from the remainder of the contract, being a part wholly performed before the time of discharge, or so performed except for the pay- ment in respect of that part of the contract of sumns which are or can be ascertainad under the contract, the court shall treat that part of the contract as if it were a separate contract and had not been frustrated and shall treat the foregoing section of this Ordinance as only applicable to the remainder of that contract.
(5) This Ordinance shall not apply-
(a) to any charterparty, except a time charterparty or a charterparty by way of demise, or to any contract (other than a charterparty) for the carriage of goods by sea; or
(b) to any contract of insurance, save as is provided
by sub-section (5) of the foregoing section; or
(c) to any contract to which section 7 of the Sale of Ordinance Goods Ordinance, 1898, (which avoids contracts for the sale of No. 4 of specific goods which perish before the risk has passed to the buyer) 1996, applies, or to any other contract for the sale, or for the sale and delivery, of specific goods, where the contract is frustrated by reason of the fact that the goods have perished,
5. Nothing in this Ordinance shall affect any settlement or Saving for agreement between the parties subsequent to the date of discharge seulement whereby the rights and liabilities of the contrasting parties fell E COREY to be determined otherwise than in accordance with the provisions agreement.
of this Ordinance.
Passed the Legislative Council of Hong Kong, this 16th day of June, 1948.
Deputy Clerk of Councils.