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The alternative argument was that, even if frustration occurred and so brought the contract to an end, the arbitration clause is not one of those matters, which are affected by the event or are frus- trated. On the contrary, it is precisely such an event that requires the continuance of the agreement to refer, so that, in case of difference as to the character of the event or the date from which frustration must be deemed to have arisen, the conventional tri- bunal, originally provided, may be available for its solution. Though further performance is excused, how is this contract discharged, unlimited as it is in time?
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All these arguments, it will be seen, resolve themselves, on examination, into the fundamental inquiry, whether in law and fact frustration had been brought about before any dispute arose with regard to frustration or its cause or its consequences. arbitration clause is but part of the contract and, unless it is couched in such terms as will except it out of the results, which follow from frustration, generally, it will come to an end too. This must be so, if the law is, that the legal effect of frustration is the immediate termination of the contract as to all matters and disputes which have not already arisen.
Throughout the line of cases, now a long one, in which it has been held that certain events frustrate the commercial adventure, contemplated by the parties when they made the contract, there runs an almost continuous series of expressions to the effect, that such a frustration brings the contract to an end forth- with, without more and automatically. They are too numerous to be cited exhaustively, but there are few expressions to the contrary and noue in recent cases. By way of illustration, reference may be made only to the following.
In Jackson v. The Union Marine (L.R. 10 C.P. at p. 145), at one end of the series, Bramwell, B., delivering the judgment of the majority in the Exchequer Chamber, describes the result of what happened by the words "the contract is at an end." In Tamplin's case, at the other, Lord Loreburn says that, if the parties had considered the matter when making the contract," they would have said if that happens, it is all over between us.' Accordingly, the implied term as to frustration may be expressed in these words" (1916, 2 A.C. at p. 404). The contract," says Lord Hal- dane (at pp. 406, 410 and 412) "must be looked upon as being wholly dissolved and the Courts cannot take any course which would in reality impose new and different terms on the parties. The Court of Appeal below gave judgment to the effect that the contract remained in existence, and that the restraint of princes' clause kept the contract alive. . . . I think that the entire contract was avoided. . . . The contract is gone and the clause with it." A statement of the general principle by Lord Parker of Waddington is expressed in the same case as follows (p. 424):-
:—“The principle which really underlies all cases, in which a contract has been held to determine upon the happening of an
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event which frustrates the object which the parties have in view, applies also to charter-parties, where some commercial adventure contemplated by the parties. . . is brought to an end. It was easy to imply a condition that, if the voyage became impossible of completion within that season, the contract should be at an end." Finally, in Bank Line v. Capel (1919, A.C. at p. 441), Lord Finlay sums up the law in these words :-"The doctrine that a contract may be put an end to by a vital change of circumstances has been repeatedly discussed. The law of the the doctrine of frustration of the subject is well settled
Neither of these adventure as terminating the contract. clauses (26 and 31) can have the effect of preventing the termination of the charter-party by the requisition."
That requisition, or at any rate requisition for so long as showed that it was to endure for a considerable though indefinite time (whichever be regarded, in fact, as the event defeating the adventure), of itself terminates the charter and all its parts, as soon as it happened, is a conclusion, which though warranted and binding in view of these and other passages, does not depend merely on the language, which a long sequence of the highest authorities have happened to use. It rests on principle, and is the only way of reconciling the special rule as to frustration with the general rules as to the obligation of contracts.
An event occurs, not contemplated by the parties and therefore not expressly dealt with in their contract, which, when it happens, frustrates their object. Evidently it is their common object that has to be frustrated, not merely the individual advantage, which one party or the other might have gained from the contract. If so, what the law provides must be a common relief from this common disappointment and an immediate termination of the obligations because other- as regards future performance. This is necessary, wise the parties would be bound to a contract, which is one that they did not really make. If it were not so, a doctrine designed to avert unintended burdens would operate to enable one party to profit by the event and to hold the other, if he so chose, to
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a new obligation. Lord Blackburn (Dahl v. Nelson, 6 A.C. at p. 53) summarises the effect of Jackson's case in these words: delay in carrying out a charter-party, caused by something for which neither party was responsible, if so great and long as to make it unreasonable to require the parties to go on with the adventure, entitled either of them, at least while the contract was executory, to consider it at an end." It should be noted that, although at
at an end first sight this right to consider the contract as might seem, from this language, to be in the option of either party but not to arise till that option is exercised, this is not really the gist of the opinion. The passage gives the effect of two cases, Geipel v. Smith (L.R. 7 Q.B. 404) and Jackson v. The Union Marine. In both cases there had been an actual refusal to perform after the event in question happened,
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