No statutory recognition.

Yes, FM must be expressly referred to and defined in a contract. Parties have the freedom to agree on the risk allocation and determination of a FM event.

• Depends on the specific wording of the FM clause and the factual circumstances.
• Generally, the party relying on the FM clause has the burden of proving the FM event by producing evidence of the impact of the event.
• The affected party is usually required to give a written notice of the FM event to the counterparty. Note the potential time limit imposed on such notification and the consequence of non-compliance.

• Depends on the specific wording of the FM clause.
• Generally, the affected party is required to use reasonable endeavors or diligence to overcome or mitigate the impact of the FM event.

• Depends on the specific wording of the FM clause.
• Performance is usually suspended for a short period or for the duration of the FM event.
• Following such suspension, an extension of time for performance may then be granted automatically or by agreement.
• If the FM event is prolonged or permanent then the clause may provide for termination by default or by agreement.

Doctrine of frustration: A frustrating event is a supervening event that is:

• not the fault of either party;
• significantly changes the nature of the contractual rights and/or obligations; and
• makes it unjust to hold the parties to the contract.

It is not sufficient if the event makes performance more expensive, onerous or impracticable or if alternative performance is available.

The incorporation of a FM clause may oust the operation of frustration as the FM clause may demonstrate that the parties have already considered the issue and the risk allocation.

Frustration results in the termination of the contract. A term may continue to operate after frustration if this is the parties' intention.

The common law provides that if a contract is frustrated, losses lie where they fall.