A substantial part of the civil law prevailent in India has developed from the Common Law, that is, as existent in UK. Yet when the law started to get structured in the form of codified forms there were adaptations to suit our own convenience and the Indian justice system.
This can be examplified by the difference in doctrine of frustration in law of contract as applied in the two justice systems.
As per Satyabrata Ghose, doctrine of frustration is really an aspect or part of the law of discharge of contract by reason of supervening impossibility or illegality of the act agreed to be done. B.K Mukherjea, J says that English law remains outside the scope of applicability as much as the Act has provisions for the case; and when there remains no provision which can be applied to a given case, the English law can be taken into purview. But in no way the English law shall be allowed to supersede the statutory provisions. Untill then the English precedents might have a mere persuasive value only.
Reading into the English Law, the doctrine first developed under the guise of reading the implied terms into the contracts. As quoted in Taylor v Caldwell, a contract must be regarded as subject to an implied condition that the parties must be excused in case before breach performance becomes impossible from perishing of the thing without default of the contractor. The English courts have time and again given solidification to such a notion, based on the belief that no obligation as arising out of a contract is so absolute that it must be executed and completed in order to discharge the contract. The law regarding, has been developed from merely making explicit the implied conditions, to supplement the defects of the actual contract, to qualifying the absolute literal or wide terms of the contract in order to do what is just and reasonable in the new situation.
The ambit of the doctrine is broader than the one applied in the Indian scenario, U/S 56 of the Act. As implied in the aforesaid paragraph the English law encompasses the implied conditions of the contingent situations; this aspect is covered under the contingent contract U/S 32 of the Act. The doctrine of frustration as per Indian law covers only part of this aspect, that is as per section 56 of the Act if any condition occurs after the making of the contract which makes the purpose of the contract frustrated by its interference than such contract shall be considered “impossible” to be executed. Hence there arises no question of finding out an implied condition.
Though there are differences in approach, yet there exist overlapping features. As stated in Morgan v Manser case, the material into which the court sees and gives judgement based, is whether the changed circumstances destroyed altogether the basis of the adventure and its
underlying object. This is a rule of construction by the English Judges, but it’s a positive law as such within the purview of section 56 of the Act. There arises another point of similarity
between the two justice systems, that is to say if the parties contract explicitly that despite a said circumstance which might cause impossibility of the contract, the contract has to be fulfilled then no question of frustration shall be raised because the basis of the contract being to demand performance despite the happening of a particular event, it cannot disappear when that event happens. This has been accepted in English law as well.
Hence we see the material points of similarities and dissimilarities between the Indian law and English law.
 AIR 1954 SC 44.  Indian Contract Act, 1872.  Supra note 1.  (1863) 3 B & S 826 (E).  Denny Mott and Dickinson Ltd. V James B. Fraser & Co. Ltd, 1944 AC 265.  British Movietonews Ltd. v. London and District Cinemas Ltd, (1951) 1 KB 190.  Supra note 2.  (1947) 2 All ER 666.  Supra note 1.  Mathew v. Curling, (1922) 2 AC 180.
Author - Pragati Gupta
Student of Faculty of Law, University of Delhi.