Paradine v Jane (1647)

Every discussion of frustration begins here, because this is the rule that frustration had to overcome. The starting position of the common law was that a man who binds himself by his own contract is bound whatever happens; if he wanted protection against a calamity, he should have written it into his bargain. Later courts departed from it not by denying its logic but by refusing to carry it to an inhuman conclusion.

For an answer, its value is that it states the old rule together with the exact reasons for it, and — importantly — it also states the exception the common law already recognised, which is where the later law found its opening.

The plaintiff declared in debt upon a lease for years, rent being reserved at the four usual feasts, and sued for three years' rent in arrear ending at the Feast of the Annunciation, 21 Car.

The defendant pleaded that "a certain German prince, by name Prince Rupert, an alien born, enemy to the King and kingdom, had invaded the realm with an hostile army of men; and with the same force did enter upon the defendant's possession, and him expelled, and held out of possession from the 19 of July 18 Car. till the Feast of the Annunciation, 21 Car. whereby he could not take the profits". The plaintiff demurred, and the plea was resolved insufficient.

The report gives three, the third being the famous one.

First, a pleading point: "Because the defendant hath not answered to one quarters rent."

Second, another: "He hath not averred that the army were all aliens, which shall not be intended, and then he hath his remedy against them" — so that the defendant, having a remedy over against the intruders, could not be heard to say he was remediless.

Third, and on the merits, "It was resolved, that the matter of the plea was insufficient; for though the whole army had been alien enemies, yet he ought to pay his rent."

The reasoning turns on a distinction between duties imposed by law and duties assumed by contract. "And this difference was taken, that where the law creates a duty or charge, and the party is disabled to perform it without any default in him, and hath no remedy over, there the law will excuse him." The illustrations given are waste, where "if a house be destroyed by tempest, or by enemies, the lessee is excused", and escape from a gaol.

The other limb of the distinction is the rule of the case: "but when the party by his own contract creates a duty or charge upon himself, he is bound to make it good, if he may, notwithstanding any accident by inevitable necessity, because he might have provided against it by his contract." Hence, "if the lessee covenant to repair a house, though it be burnt by lightning, or thrown down by enemies, yet he ought to repair it."

Rent was then brought within that limb. The rent being "a duty created by the parties upon the reservation", had there been an express covenant to pay it, "there had been no question but the lessee must have made it good, notwithstanding the interruption by enemies, for the law would not protect him beyond his own agreement, no more then in the case of reparations"; and the reservation, "being a covenant in law", was "all one as if there had been an actual covenant".

A second reason was added, of risk allocation over the whole term: "that as the lessee is to have the advantage of casual profits, so he must run the hazard of casual losses, and not lay the whole burthen of them upon his lessor". So it was cited that though land "be surrounded, or gained by the sea, or made barren by wildfire, yet the lessor shall have his whole rent".

Judgment was given for the plaintiff. Dispossession of the tenant for years together by an invading hostile army was no answer to the claim for rent.