NSW Contract Law - How to Fulfil Agreement if Terms are Unobtainable?

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1 October 2015
If one enters into an agreement and finds the terms impossible to fulfil e.g. the planting of specific size, cultivar and variety of a tree within a specified period and the tree proves to be unavailable, how could the agreement be fulfiled under Contract Law?


Where performance of a contract is impossible and its not either party's fault, the contract is said to be frustrated, allowing the parties to be released from further performance.

In order to prove the contract is frustrated you need to show that without default by either party a contractual obligation is incapable of being performed due to circumstances. You must also show the frustrating event was not caused by either party, it was not one where it was reasonably contemplated by either party and the occurrence was not caused by the party seeking to rely on the frustration.

A contract which is frustrated automatically comes to an end, however, any liabilities prior to the frustrating event may still be enforceable.