LAWS OF WESTERN SAMOA

FRUSTRATED CONTRACTS ACT 1975

ANALYSIS

Title
1. Short title and commencement
2. Interpretation
3. Application of Act
4. Adjustment of rights and liabilities of parties to frustrated contracts
5. Repeal

--------------

1975, No. 3

An Act pertaining to the frustration of contracts

[11 August 1975

1. Short title and commencement - (1) This Act may be cited as the Frustrated Contracts Act 1975.

(2) This Act shall come into force on a date to be appointed by the Head of State, acting on the advice of Cabinet, by Order.

This Act was brought into force on 1 September 1976; see W.S.R. 1976/17 reprinted below.

2. Interpretation - In this Act the expression "Court" means, in relation to any matter, the Court or arbitrator by or before whom the matter falls to be determined.

3. Application of Act - (1) This Act shall apply to all contracts, whether made before or after the commencement of this Act, except contracts in respect of which the times of discharge were before the 1st day of November 1944.

(2) This Act shall apply to contracts to which the Government is a party in the same manner as it applies to contracts between other persons.

(3) Where any contract to which this Act applies contains any provision that, on the true construction of the contract, -

(a) Is intended to have effect in the event of circumstances arising which operate or would, but for that provision, operate to frustrate the contract; or

(b) Is intended to have effect whether or not such circumstances arise –

the Court shall give effect to the provision in the contract, and shall only give effect to section 4 to such extent (if any) as appears to the Court to be consistent with the provision in the contract.

(4) Where it appears to the Court that any part of a contract to which this Act applies 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 section 4 as applicable only to the remainder of that contract.

(5) This Act shall not apply -

(a) To any charter party, except a time charter party or a charter party by way of demise, or to any contact (other than a charter party) for the carriage of goods by sea; or

(b) To any contract of insurance, except as provided by subsection (5) of section 4; or

(c) To any contract to which [section 7 of the Sale of Goods Act 1975] applies (which avoids contracts for the sale of specific goods which perish before the risk has passed to the buyer), 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 before the risk has passed to the buyer.

In subs. (5) (c), s. 7 of the Sale of Goods Act 1975, being the corresponding enactment in force at the date of this reprint, has been substituted for s. 8 of the Sale of Goods Act 1908 (N.Z.)

4. Adjustment of rights and liabilities of parties to frustrated contracts - (1) Where a contract governed by the law of Western Samoa has become impossible of performance or been otherwise frustrated, and the parties to the contract have for that reason been discharged from the further performance of the contract, the following provisions of this section shall, subject to section 3, have effect in relation to the contract.

(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 Act referred to as the time of discharge) shall, in the case of sums so paid, be recoverable from him as money received by him 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:

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 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.

(3) Where any party to the contract has, by reason of anything done by any other party to the contract, in or for the purpose of the performance of the contract, obtained a valuable benefit (other than a payment of money to which subsection (2) applies) before the time of discharge, there shall be recoverable from him by the other party such sum (if any), not exceeding the value of the benefit to the party obtaining it, as the Court considers just, having regard to all the circumstances of the case and, in particular, -

(a) The amount of any expenses incurred before the time of discharge by the party who has obtained the benefit, in or for the purpose of the performance of the contract, including any sums paid or payable by him to any other party in pursuance of the contract and retained or recoverable by that party under subsection (2); and

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

(4) In estimating, for the purposes of the preceding provisions of this section, the amount of any expenses incurred by any party to the contract, the Court may, without prejudice to the generality of those 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 party.

(5) In considering whether any sum ought to be recovered or retained under the preceding provisions of this section 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.

(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 on any other person, whether a party to the contract or not, the Court may, if in all the circumstances of the case it considers that it is just to do so, treat for the purposes of subsection (3) any benefit so conferred as a benefit obtained by the person who has assumed such obligations.

5. Repeal - The Frustrated Contracts Act 1944 (N.Z.) is hereby repealed as part of the law of Western Samoa.

________

The Frustrated Contracts Act 1975 is administered in the Department of Justice.

_____

REGULATIONS APPLYING TO FRUSTRATED CONTRACTS

Frustrated Contracts Act (Commencement) Order 1976 (W.S.R. 1976/17)

______

FRUSTRATED CONTRACTS ACT (COMMENCEMENT) ORDER 1976

_____

His HIGHNESS, MALIETOA TANUMAFILI II, HEAD OF STATE

At the Government House at Apia this 24th day of June 1976.

PURSUANT to section 1 (2) of the Frustrated Contracts Act 1975, the Head of State, acting on the advice of Cabinet, hereby makes the following Order:

ORDER

1. Title - This Order may be cited as the Frustrated Contracts Act (Commencement) Order 1976.

2. Commencement of Frustrated Contracts Act 1975 - The Frustrated Contracts Act 1975 shall come into force on the 1st day of September 1976.

MALIETOA TANUMAFILI II
Head of State

-------------------------------------