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Section VII   Impossibility of performance

Revised Laws of Saint Lucia (2021)

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Section VII   Impossibility of performance

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    1130.   An obligation is extinguished when either the specific thing which is its subject perishes, or delivery of the thing becomes, from any other cause, impossible through no fault of the debtor and before he is in default, and also when, notwithstanding such fault or default, the thing would have equally perished or its delivery would have equally become impossible, if in the possession of the creditor, unless in either case the debtor has bound himself or herself to take the risk of fortuitous events.

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    The debtor must prove the fortuitous event which he alleges.

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    The destruction of a thing stolen or the impossibility of delivering it does not discharge him or her who stole the thing, or him or her who knowingly received it, from the obligation to pay its value.

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    1131.   When the performance of an obligation has become impossible through no fault of the debtor, he or she is bound to assign to the creditor such rights of indemnity as he or she may possess relating to the obligation.

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    1132.   When the performance of an obligation to do has become impossible through no fault of the debtor and before he or she is in default, the obligation is extinguished and both parties are liberated; but if the obligation be performed in part, the creditor is bound to the extent of the benefit actually received.

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    1132A.   

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      (1)     Where a contract governed by the law of Saint Lucia or by English law has become impossible of performance or been otherwise frustrated, and the parties thereto have for that reason been discharged from the further performance of the contract, the following provisions of this article shall, subject to the provisions of article 1132B, have effect in relation thereto.

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      (2)     All sums paid or payable to any party in pursuance of the contract before the time when the parties were so discharged (in this and the following article referred to as “the time of discharge”) shall, in the case of sums so paid, be recoverable from him as money received by him or her for the use of the party by whom the sums were paid, and, in the case of sums so payable, cease to be so payable:

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    Provided that, if the party to whom the sums were so paid or payable incurred expenses before the time of discharge in, or for the purpose of, the performance of the contract, the Court may, if it considers it just to do so having regard to all the circumstances of the case, allow him or her to retain or, as the case may be, recover the whole or any part of the sums so paid or payable, not being an amount in excess of the expenses so incurred.

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      (3)     Where any party to the contract has, by reason of anything done by any other party thereto in, or for the purpose of, the performance of the contract, obtained a valuable benefit (other than a payment of money to which the last foregoing paragraph applies) before the time of discharge, there shall be recoverable from him or her by the said other party such sum (if any), not exceeding the value of the said benefit to the party obtaining it, as the Court considers just, having regard to all the circumstances of the case and, in particular,—

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        (a)     the amount of any expenses incurred before the time of discharge by the benefited party in, or for the purpose of, the performance of the contract, including any sums paid or payable by him or her to any other party in pursuance of the contract and retained or recoverable by that party under the last foregoing paragraph, and

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        (b)     the effect, in relation to the said benefit, of the circumstances giving rise to the frustration of the contract.

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      (4)     In estimating, for the purposes of the foregoing provisions of this article, the amount of any expenses incurred by any party to the contract, the Court may, without prejudice to the generality of the said provisions, include such sum as appears to be reasonable in respect of overhead expenses and in respect of any work or services performed personally by the said party.

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      (5)     In considering whether any sum ought to be recovered or retained under the foregoing provisions of this article by any party to the contract, the Court shall not take into account any sums which have, by reason of the circumstances giving rise to the frustration of the contract, become payable to that party under any contract of insurance unless there was an obligation to insure imposed by an express term of the frustrated contract or by or under any enactment.

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      (6)     Where any person has assumed obligations under the contract in consideration of the conferring of a benefit by any other party to the contract upon any other person, whether a party to the contract or not, the Court may, if in all the circumstances of the case it considers it just to do so, treat for the purposes of paragraph (3) of this article any benefit so conferred as a benefit obtained by the person who has assumed the obligations as aforesaid.

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    1132B.   

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      (1)     Articles 1132A and 1132B shall apply to contracts to which the Crown is a party in like manner as to contracts between subjects.

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      (2)     Where any contract to which the said articles apply contains any provision which, upon the true construction of the contract, is intended to have effect in the event of circumstances arising which operate, or would but for the said provision operate, to frustrate the contract, or is intended to have effect whether such circumstances arise or not, the Court shall give effect to the said provision and shall only give effect to the foregoing article to such extent, if any, as appears to the Court to be consistent with the said provision.

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      (3)     Where it appears to the Court that a part of any contract to which these articles apply can properly be severed from the remainder of the contract, being a part wholly performed before the time of discharge, or so performed except for the payment in respect of that part of the contract of sums which are or can be ascertained under the contract, the Court shall treat that part of the contract as if it were a separate contract and had not been frustrated and shall treat the foregoing article as only applicable to the remainder of that contract.

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      (4)     Articles 1132A and 1132B shall not apply—

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        (a)     to any charterparty, except a time charterparty or a charterparty by way of demise, or to any contract (other than a charterparty) for the carriage of goods by sea; or

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        (b)     to any contract of insurance, save as is provided by paragraph (5) of the foregoing article; or

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        (c)     to any contract to which article 278 of the Commercial Code (which avoids contracts for the sale of specific goods which perish before the risk has passed to the buyer) applies, or to any other contract for the sale, or for the sale and delivery, of specific goods, where the contract is frustrated by reason of the fact that the goods have perished. (Added by Act 34 of 1956)

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