The Sanctity of Contracts in English Law - College of Social ...

50 Curtailment of Freedom by the Courtsirrespective of the volition or the intention of theparties or their knowledge as to that particular event. 25"Their own belief and their own intention is evidence,and evidence only, upon which the court can form itsown view whether the changed circumstances wereso fundamental as to strike at the root of the contractand not to have been contemplated by the parties." 2SConsequently, other juristic justifications for thedissolution of certain contracts by impossibility havehad to be explored. The conclusion I have reachedis that the doctrine of the implied term has serveda useful purpose: it has enabled the courts, as itwere by a legal fiction, to assume the jurisdiction, tomodify or dissolve contractual obligations so as todispense justice to the parties having regard tofundamental changes in circumstances outside theircontrol. The doctrine of frustration is now so wellrecognised and established that it no longer needs thefiction of an implied term to support it. So it isgenerally, but gradually, being displaced by thetheory that a change of circumstances that fundamentallystrikes at the root of a contract justifies theimposition by the court of a solution that is just andreasonable in the new circumstances. 26 The truth is,as Lord Wright has written in one of his Essays, 27" that the court or jury as a judge of fact decidesthe question in accordance with what seems to be« See per Streatfeild J. in Morgan v. Manner [1948] 1 K.B. 184,191.26See Joseph Constantine SS. Line, Ltd. v. Imperial SmeltingCorporation [1942] A.C. 154, 183.27Legal Essays and Addresses, p. 259.