국제상거래상 Frustration이론에 관한 고찰

The purpose of this study aims to analyse the doctrine of frustration in international commercial contracts with English law. It is generally acknowledged that the principle of pacta sunt servanda, meaning that contracts should prima facie be enforced according to their terms, may have to be qualified by exemption such as force majeure, frustration, rebus sic stantibus or hardship. Where contracting parties elect to incorporate into their contract a force majeure clause they can make provision, not only for what constitutes a force majeure event, but also for the consequences of such an event. For example, provision can be made for the granting of extensions of time, the suspension or variation of the contract or even the termination of the contract. The variety of such clauses and their flexibility are such that the consequences of the occurrence of a force majeure event must depend primary upon the proper interpretation of the clause at issue, although in certain cases, where the force majeure clause itself does not deal with all eventualities, it may be possible to have resort to common law rules. But in the case of frustration the story is a rather different one; here greater reliance has, historically, been placed upon the general law, both common law and statute, rather than upon contractual terms negotiated by the parties. For example, a contract which is discharged on the ground of frustration is brought to an end automatically by the operation of a rule of law, irrespective of the whishes of the parties.