The consequences of goods perishing subsequent to a contract having been entered into for their sale

Abstract

The thesis comprises three Parts, together with a preface and an addendum. Each of the Parts focuses upon one of the three inter-related concepts applicable where there is a post-contract perishing of goods. The concepts of "perishing", "risk" and "frustration" are separately analysed so as to identify their individual characteristics and in order that facets of their inter-relationship may emerge. Part One, which deals with the meaning of "perishing", is more descriptive in nature than the other two Parts, for, when considered in isolation, the issues raised in that Part are relatively straightforward. It is only when those same issues are re-considered, in the context of the concepts of risk and frustration, that their significance becomes apparent. In Part Two, an analysis is made of the meaning of "risk" and instances of the divisibility of risk are examined. Different views of the mishaps provided for by the statutory term "risk" are assessed and, as part of that exercise, the meaning of "perished" is re-appraised. An analysis is made, in Part Three, of the rules which provide for frustration of a contract of sale and for the consequences resulting from such frustration. An attempt is made to identify instances in which a contract of sale may be frustrated even though property, or risk, or, indeed, both property and risk, have passed to the buyer prior to the goods perishing. In the addendum to the thesis an opportunity is taken to re-examine the concepts of "perishing", "risk" and "frustration" in a context in which, the separate concepts having already been analysed and detailed statutory and common law provisions scrutinised, there is freedom to bring together strands which have emerged from the various Parts of the thesis. This opportunity is taken in an attempt to fix the relationship between the concepts.