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Fibrosa Spolka V. Fairbairn Notes

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FIBROSA SPOLKA V. FAIRBAIRN FACTS By a contract in writing dated July 12, 1939, the respondents, an English company, agreed to sell and the appellants, a Polish company, agreed to purchase machinery for 4800l. of which onethird was to be paid with the order. Delivery was to be three to four months from settlement of final details and the goods were to be packed and delivered c.i.f. Gdynia, Poland. The sale was made subject to certain conditions and cl. 7 was as follows: "Should dispatch be hindered or delayed .... by any cause whatsoever beyond our reasonable control, including .... war .... a reasonable extension of time shall be granted." Only 1000l. out of the sum of 1600l. to be paid with the order was in fact paid. On September 1, 1939, war broke out between Germany and Poland and on September 3 Great Britain declared war on Germany. The appellants claimed that the contract had been frustrated and that they were not under an obligation to return the 1000l. ISSUE Whether, when this contract became frustrated, the appellants could, in the circumstances of the present case, claim back from the respondents the 1000l. which they had paid when placing the order. HOLDING Viscount Simon Court of Appeal had taken the view that having regard to the principle in Chandler v. Webster, the claim of the appellants must fail. This alleged principle is to the effect that where a contract has been frustrated by such a supervening event as releases from further performance, "the loss lies where it falls," with the result that sums paid or rights accrued before that event are not to be surrendered, but all obligations falling due for performance after that event are discharged. The rule is subject to contractual terms: If we are to approach this problem anew, it must be premised that the first matter to be considered is always the terms of the particular contract. If, for example, the contract is "divisible" in the sense that a sum is to be paid over in respect of completion of a defined portion of the work, it may well be that the sum is not returnable if completion of the whole work is frustrated. If the contract itself on its true construction stipulates for a particular result which is to follow in regard to money already paid, should frustration afterwards occur, this governs the matter. The ancient and firmly established rule that freight paid in advance is not returned if the completion of the

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