In Lloyds TSB Foundation for Scotland v Lloyds Banking Group plc [2013] UKSC 3, 2013 SC (UKSC) 169, Lord Hope of Craighead uttered the following obiter dictum:
[T]he proposition that the court can equitably adjust a contract on the basis that its performance, while not frustrated, is no longer that which was originally contemplated is not part of Scots law. To hold otherwise would be to undermine the principle enshrined in the maxim pacta sunt servanda which lies at the root of the whole of the law of contract. I see no need for this and, as there is no need for it, I would reject the suggestion that the court should assume that function [para 48].
The Lloyds TSB Foundation case will be discussed further below. The purpose of this blog entry is to challenge the absoluteness of Lord Hope’s statement and to argue that Scots law can and does recognise the possibility of “equitable adjustment” of contracts to deal with significantly changed circumstances, such as is found in many other legal systems. Not all the relevant authorities were reviewed in Lord Hope’s judgment.
This is likely to be an important legal issue as the effects of the Covid-19 pandemic and the subsequent “lockdown” of the economy begin to play out in the courts and elsewhere. It is sometimes said that such judicial powers of equitable adjustment would undermine the great need for certainty in contract law; but to respond to the huge uncertainties created by the pandemic only by invoking that particular need seems seriously inadequate.
Frustration of contract
Modern Scots law, having started from a general position that a contract was unaffected by its ceasing to be capable of performance, has now very largely adopted from English law its doctrine of frustration of contract. Under this doctrine, a contract’s further performance obligations will be discharged by a frustrating event which renders performance impossible, illegal or something radically different from what the contract envisaged (McBryde 2007: ch 21; 15 SME paras 880-89; MacQueen & Thomson 2020: paras 5.63-5.86; Styles 2020).
There are some differences from English law. It is not clear how far Scots law accepts (if at all) the idea of ‘frustration of purpose’ as first developed in the English ‘Coronation cases’ (McBryde 2007: paras 21.31-21.34; 15 SME para 886; Macgregor 2009: 244-80, 266-8). As settled in the great case of Cantiere San Rocco SA v Clyde Shipbuilding & Engineering Co 1923 SC (HL) 105, economic imbalances left by the discharge of a frustrated contract will be worked out as far as possible by way of the common law of unjustified enrichment; the Law Reform (Frustrated Contracts) Act 1943 does not extend to Scotland and contracts governed by Scots law.
Scots law has generally followed the narrow approach of the English courts in the doctrine’s application. The supervening illegality of contracts that had already been formed before the relevant legislation came into force seems the likeliest question to be dealt with in litigation once the emergency period ends; by itself, Covid-19 does not render contractual performance impossible (unless a victim dies with a contract still to perform) or make it any different from what it was before. It seems unlikely that frustration will apply to any contract formed before the lockdown began unless completion of its performance fell due within the lockdown period.
The problem most likely to confront Scots contract law as a result of the coronavirus pandemic and the ensuing lockdown will therefore be from post-formation changes in circumstances that do not frustrate the contract. It is here that “equitable adjustment” may become most relevant.
Equitable adjustment
The argument that the Scottish courts have a power of equitable adjustment, at least in frustration cases, was first made extra-judicially by Lord President Cooper in 1946 (subsequently reproduced in 1957 in a collection of his papers, which is the version referred to henceforth). He may have been inspired by some remarks of the Scottish House of Lords judge, Lord Macmillan, in the English case of Fibrosa Spolka Akcyjna v Fairbairn Lawson Combe Barbour Ltd [1943] AC 32, 58-9:
[T]he law may endeavour to effect an equitable adjustment between the parties so as to restore each as far as may be to the position which he occupied before he entered into the contract and by a process of give and take to mitigate the consequences of the contract having proved abortive. … [But] to attempt to restore matters in their entirety is to attempt the impossible. The hands of the clock cannot be turned back. Things cannot be as if they had not been. At best some sort of equitable accommodation can be achieved which must inevitably fall short of complete justice.
Macmillan’s comments seemed however to envisage only restitution or unjustified enrichment as the means of making equitable adjustment between the parties to the frustrated contract. Taking a historical approach that stretched back in its examination of sources to the beginning of the seventeenth century, Cooper went further, picking out in particular the concept of risk:
Res perit domino was the brocard to which appeal was often made … the question which the courts were in use to put to themselves was—On whom should the risk of this casualty fall? (Cooper 1957: 126)
The courts had established by the seventeenth century at latest a doctrine for the contract of hire whereby in some circumstances the risk of subsequent events was held to fall on neither party and the contract was thereupon discharged. Rei interitus applied chiefly in leases of land, whereby the destruction of the subject-matter brought the contract to an end. The doctrine could also apply to hire of moveables. (See further Stair, Institutions, I.xv.2-3; Bankton, Institute, I.xx.1, 13-19; Erskine, Institute, III.iii. 15; Hume, Lectures, II, 80-82, 91-93; Bell, Principles, § 29). In Cooper’s own time the courts had recognised that the concept also applied to the sterilisation of the subjects such as occurred through military requisition of the land for indeterminate periods of time (Tay Salmon Fisheries Ltd v Speedie 1929 SC 593; Mackeson v Boyd 1942 SC 56). Cooper also argued that the rules on the effect of death in contracts for the hire of work, referred to above, were an instance of the doctrine of rei interitus, employment being understood as the hire of another’s service or services (Cooper 1957: 126).
But in some instances where the destruction of the hire subjects was partial rather than total the courts’ approach to the matter was (and still is, insofar as the contract does not provide otherwise) to abate the amount of rent payable rather than either to discharge or leave the contract in full effect. The main modern authorities are Muir v McIntyres (1887) 14 R 470, in which the earlier cases are reviewed in detail, and Sharp v Thomson 1930 SC 1092. Abatement is not a matter of setting off against the liability for rent the tenant’s claim to have the subjects repaired by the landlord (a right which also exists unless the lease otherwise provides). Rather the abatement is a proportionate reduction of the rent due when unanticipated events beyond either party’s control mean that the full subjects are no longer available to the tenant. Even if a tenant is contractually liable to carry out repairs to damaged subjects, that can only extend to such repairs as were within the parties’ contemplation at the time of contracting (Gloag & Henderson paras 11.08, 13.06, 35.08).
Lord Cooper (1957: 131) thought that these cases extended beyond leases and made un-necessary the War Damage to Land (Scotland) Act 1939 (still in force today) under which the courts are given power to modify or suspend, not only leases, but also dispositions (sales) or heritable securities (colloquially known as mortgages) affecting subjects destroyed in whole or in part by war damage.[1] As the Lord Advocate at the time of the Act, Cooper’s comment that “[i]t sometimes happens—experto crede—that an Act has to be applied to Scotland simply because a like Act has already been applied to England” may suggest that the Act was introduced against his professional advice (Cooper 1957: 131; and see the Landlord and Tenant (War Damage) Act 1939, ss 1 and 2 for England & Wales (also still in force)). If the relevant rules developed more in the law of property and particular contracts rather than in the general law of contract, greater generalisation was possible and to be encouraged in the light of the problems thrown up by successive world wars for the law of contract.
Other forms of equitable adjustment?
Unfortunately, perhaps, Cooper had no opportunity to develop his ideas any further, and it is unclear how far he would have taken them; for example, in recognising the possibility of the court adjusting the outcomes of contracts in circumstances not amounting to frustration. He decided one frustration case during the Second World War in a way perhaps less flexible than his later article suggested would be appropriate. In James B Fraser v Denny Mott & Dickson 1943 SC 293 the parties had, in 1929, embodied in a single document a combination of what today would be called a ‘requirements’ agreement with regard to the supply of particular types of timber, a lease of the purchasers’ timber yard to the supplier, and an option for the supplier/lessee to buy the purchasers’ timber yard outright should either party give notice of termination of the contract. The contract had no definite limits of time. Upon the outbreak of war in September 1939 the parties were required by emergency legislation to cease trading, although the supplier continued in occupation of the purchaser’s timber yard. The Second Division of the Court of Session, headed by Lord Justice-Clerk Cooper, held that there was a single contract which had been entirely frustrated by delay of a continuing and unforeseeably long duration by at latest July 1941 (when the purchasers had sought to terminate the agreement). On the footing that the purchasers’ notice of termination had been un-necessary since the trading arrangement was already frustrated so that the pre-condition for the option’s exercise did not and could not arise, the court rejected a holding at first instance that while the trading part of the contract was frustrated the option remained in force. However, Cooper’s judgment left no door ajar for the possibility of partial frustration. The actual decision was later affirmed in the House of Lords (James B Fraser v Denny Mott & Dickson 1944 SC (HL) 35), but some of the judges there were more open to the possibility that not all provisions in a contract might necessarily fall victim to its frustration (e.g. Viscount Simon at 39, Lord Wright at 48, both citing as an example Leiston Gas Co v Leiston-cum-Sizewell Urban District Council [1916] 2 KB 428 (CA; never over-ruled)). Lords Macmillan and Porter appear to be against their colleagues’ view, however, at pp 41-42 and 51-52 respectively.
Partial frustration might still be a usefully flexible response to some cases of unanticipated and unforeseeable changes in circumstance. McBryde (2007: para 21.45) lists contract terms which may survive frustration, such as arbitration clauses. An old case mentioned in the Cantiere case, but not referred to by Cooper, is Ogilvy v Hume (1683) 2 Brown’s Supplement 34, where an apprentice’s master died three years into a five-year apprenticeship. It was held that the apprentice need not pay the two-year balance of his apprenticeship fee. A similar decision is Cutler v Littlejohn (1711) Mor 583. Apprenticeship contracts where the apprentice paid the master cannot be seen as contracts of hire; otherwise the abatements of the fee appear similar in principle to the rent cases. But in Shepherd v Innes (1760) Mor 589, where it was the apprentice who died, the master was held able to recover the full apprenticeship fee on the basis that no fault could be attributed to him in the circumstances. In Rule v Reid (1707) Mor 6364, Rule had before his death promised to pay Reid for arranging his funeral and educating his children. While Reid had arranged the funeral, he became too ill to see to the children’s education and eventually died. His executors’ claim to payment of the sum in full was upheld, on the basis that Reid had arranged the funeral and had accepted the care of the children.
A further possibility not noted in Cooper’s article was the potential application of the doctrine of mutuality of contract, under which if a party does not perform its side of the contract the other party need not perform its reciprocal obligations, while a party that is not performing cannot compel performance by the other party. For a long time the doctrine has been viewed as part of the law of breach of contract (McBryde 2007: paras 20.44-20.61; MacQueen and Thomson 2020: paras 6.8-6.11). But it is not so confined in its earliest statements. Erskine, Institute, III.iii.86 states: “No party in a mutual contract, where the obligations on the parties are the causes of one another, can demand performance from the other, if he himself either cannot (emphasis supplied) or will not perform the counterpart; for the mutual obligations are considered as conditional.” (See also Stair, Institutions, I.x.16; and Bankton, Institute, I.xi.13.) The potential benefit of recognising its operation in frustration contracts would be that the obligations of performance are suspended rather than discharged where the initial non-performance was attributable to relevantly changed external circumstances since the contract’s conclusion.
Failure of Cooper’s arguments
The arguments that Cooper did advance in his article have not yet commanded general acceptance, while it is standard modern practice to contract out of rei interitus in commercial leases. Today the rent abatement cases are seen typically as exceptions to a general rule that either there is frustration and discharge, or the loss lies where it falls (e.g. Gloag & Henderson, para 11.08). As Saul Miller (2004: 454-455) rightly points out, generally contractual risk rules “simply determine which one of the contracting parties bears the entire loss.” Thus in Sloan’s Dairies v Glasgow Corporation 1977 SC 223, for example, where fire seriously damaged the subjects of a sale of land before the buyer could take possession, it was held that risk had passed from the seller upon the contract’s conclusion and that the buyer was accordingly liable for the full price. No argument for its abatement was made to the court. Miller argues accordingly that only statutory intervention can introduce a satisfactory loss apportionment scheme for the law on frustration. McBryde (2007: para 21.48) writes that the Scottish courts have “all the requisite powers” needed to effect reasonable adjustments beyond the reversal of unjustified enrichment, and cites Head Wrightson Aluminium Ltd v Aberdeen Harbour Commissioners 1958 SLT (Notes) 12, in which a party to a contract frustrated for it by the acts of the other party was held entitled to an award of quantum meruit for work done prior to the frustration. On the other hand, Laura Macgregor (2009: 274) says that “a modern Scottish court is likely to react with surprise to the suggestion that it possesses such a power.”
The question was finally put to the Scottish courts in 2011, and Macgregor’s scepticism borne out, in the case of Lloyds TSB Foundation for Scotland v Lloyds Banking Group plc [2011] CSOH 105, 2012 SLT 13; [2011] CSIH 87, 2012 SC 259; [2013] UKSC 3, 2013 SC (UKSC) 169. This arose from the financial crash of 2008. TSB Bank had previously set up a charitable foundation (F) to which it made annual payments based upon a certain percentage of the pre-tax profits shown in its annual accounts, with a minimum payment each year of about £38,000. Bank L merged with TSB Bank in 1995 and maintained F thereafter. In 2002 a new accounting requirement came in under which L’s annual accounts had to show in the profit and loss account a sum for any ‘negative goodwill’; that is, the amount by which the capital value of an asset acquired during the year exceeded what had been paid for it where that was the case. During the banking and financial crisis of 2008-2009 Bank L acquired another bank (HBOS) which, although of high capital value, was confronted with liabilities which would probably have bankrupted it but for the takeover. The price paid was therefore much less than the acquisition’s capital value, by some £11.173 billion. The extreme negative goodwill of this rescue operation meant that the 2010 accounts showed Bank L in substantial profit although otherwise on its trading activities it too had suffered severe losses. F claimed the sum produced by calculating the percentage of the profit to which it was apparently entitled on the wording of the contract, some £3.5 million. Bank L, as well as arguing about the proper interpretation of the contract, made a submission that Scots law either already recognised, or should recognise, a doctrine termed ‘equitable adjustment’ enabling the courts to address fairly such cases of changed circumstances. It was accepted that the circumstances were not such as to give rise to frustration of the contract.
At first instance in the Outer House of the Court of Session Lord Glennie rather bluntly dismissed the argument for a power of equitable adjustment: “I am not persuaded that there is a such a doctrine in Scots law” ([2011] CSOH 105, 2012 SLT 13, para 90). Part of the reasoning supporting this conclusion was that there was no equivalent doctrine in English law, an approach rightly criticised by Macgregor (2011). On appeal, the First Division of the Court of Session declared that “We are unable to find in Scots law any general doctrine of ‘equitable adjustment’ which would allow the court to moderate the obligation contractually owed by the respondent to the reclaimer” ([2011] CSIH 87, 2012 SC 259, para 28). The court added:
While it appears that certain European jurisdictions do have some form of equitable adjustment of contracts, there is, as yet, no foundation for it, as a generality, in Scots law. It would be beyond the proper scope of judicial power to develop it in any way which would assist the respondent in this case (para 29).
When the case reached the UK Supreme Court, Bank L’s argument for a doctrine of equitable adjustment was not needed, because it won the case as a matter of the contract’s interpretation. The dictum of Lord Hope of Craighead quoted at the outset of this blog must therefore be seen as not necessary for the actual decision in the case and so obiter and not binding even on lower courts.
Still room for equitable adjustment?
Despite their obiter nature, Lord Hope’s remarks obviously carry considerable weight. A chink of light was however left open for future argument about equitable adjustment, however, by his acknowledgement that “[a]daptability has a part to play in any civilised system of law”, and that his conclusion on the argument before him was “not the occasion to cast doubt on the ability of Scots law to find equitable solutions to unforeseen problems” ([2013] UKSC 3, 2013 SC (UKSC) 169, para 43). Lord Hope would thus seem to have a more optimistic view of judicial power to develop the law to meet new circumstances than his colleagues below in the First Division of the Court of Session.
Lord Hope also conceded that the application of enrichment principles to deal with frustrated contracts was an example of an equitable adjustment, and he noted from the law of leases the abatement of rent cases cited by Lord Cooper. He additionally referred to the case of Wilkie v Bethune (1848) 11 D 132, in which a farm servant was to be paid partly in money and partly in potatoes, but the great potato blight of 1846 led the farmer to refuse to fulfil the latter part of his obligation, and the First Division ordered him instead to pay the servant the money equivalent to ensure the servant’s “sustentation”, i.e. so that he could feed himself and his household. Lord Hope held that the case was an exceptional one, however, and not the source of any general principle.
It may also be said that the Lloyds TSB Foundation case was not the best one in which to develop any notion of equitable adjustment in Scots law. This is so even if the collapse and near-collapse of many banks in 2008, and the concomitant threat to the entire global financial system, looks major enough to qualify as of a sufficiently significant nature to trigger change of circumstance rules in relation to contracts the balance of which was disturbed by these events. But as Lord Hope pointed out ([2013] UKSC 3, 2013 SC (UKSC) 169, para 46), the problem in the case arose from Bank L’s own decision in the crisis to acquire HBOS;[2] the difficulty was, as it were, self-induced. Nor was there any suggestion that the sum involved would reduce Bank L finally to its knees, with all the deleterious consequences that would involve; were it otherwise, the bank would probably not have undertaken the expensive risk of litigating the matter all the way to the Supreme Court. The payment was a ‘one-off’ brought about by circumstances which posed problems for the bank for one year only. Bank L was thus trying to escape from a bargain which would work out badly for it at a particular moment if it lost on the interpretation point. But as the same bargain might well go bad in future for F, there was no case in equity for allowing L to escape at this particular point (see further MacQueen 2012: 302-303).
The Lloyds TSB case can thus be read more narrowly, as one where the equity of making an adjustment to the contract failed to be demonstrated, rather than as one where the possibility of doing so at all was decisively ruled out. Various common threads such as good faith, equity and exceptionality run through the cases of equitable adjustment apart from frustration mentioned by Lord Hope. The rent abatement cases, for example, were said by Lord Shand in 1887 to be “founded on the highest equity” (Muir v McIntyres, (1887) 14 R 470 at 473). In Wilkie v Bethune the farm servant sought specific implement or damages based on the market price of potatoes. Although the various judicial opinions are not models of clarity, the case can be read as one where the court exercised its equitable discretion not to grant specific implement and awarded damages instead. This rested on the good faith interpretation of the contract of employment as one of sustenance for the servant rather than one intended to provide him with goods for resale at a profit. Certainly in the modern law it is clear that although specific implement is a matter of right in Scotland, this is tempered by the court’s equitable power to refuse the remedy where performance is impossible or otherwise unenforceable, or (more significantly for present purposes) would cause undue hardship for the defender (McBryde 2007: paras 23.15-23.22; MacQueen and Thomson 2020: paras 7.6-7.11). Wilkie v Bethune is thus indeed exceptional on its facts; but it is precisely in exceptional cases that one should expect a principle of equitable adjustment to become applicable.
Lord Cooper (1957: 124) argued that one of the “cardinal features” of Scots law in addressing the problem of change of circumstances was that “[w]ith us law and equity have never been separated, and equity has tended to predominate.” The second observation can be fairly doubted; the late Joe Thomson (1992: 923) once observed that in Scots law “equity has passed the age of child-bearing.” That extreme conclusion is implicitly challenged in general by the more recent and deeper analysis of the subject provided by Dan Carr (2017 and 2019). Nor can there be any doubt about the role equity already plays in contract law. Apart from its use to regulate specific implement, mentioned above, it also qualifies the right to withhold performance under the doctrine of mutuality and the power of a party to insist on performing despite the other party’s repudiatory or anticipated breach (MacQueen and O’Byrne 2019: 320-6). While good faith may well be “generally an underlying principle of an explanatory and legitimating rather than an active or creative nature” (from Lord Hope in R v Immigration Officer at Prague Airport ex parte European Roma Rights Centre [2004] UKHL 55, [2005] 2 AC 1, para 60), “the broad principle in the field of contract law of fair dealing in good faith” (Lord Clyde in Smith v Bank of Scotland 1997 SC (HL) 111, 121) has been explicitly used to require particular kinds of action by contracting parties; and many other contract rules can be recognised as manifestations of the principle (see further MacQueen and Thomson 2020: para 5.26).
The doctrine of frustration looks unlikely to have much application in the context of the coronavirus pandemic in Scotland unless the period of emergency lockdown extends much further than the not quite three months it has lasted at the time of writing. But a doctrine of equitable adjustment encompassing the possibility of modification of otherwise strict contract terms to prevent manifest unfairness, abatement of sums of money otherwise due, temporary suspension of performance obligations, and claims in enrichment and quantum meruit for work done but not completed, all short of frustration, could have a useful role to play when the parties themselves cannot agree on how to resolve the problems caused for their contracts by the legal restraints with which the pandemic has been tackled. It might be a way for the Scottish courts to put some substance behind the UK Government’s guidance dated 7 May 2020 on responsible contractual behaviour in the performance and enforcement of contracts impacted by the Covid-19 emergency (Cabinet Office 2020). Similarly it could help provide the “more creative, graded, but nevertheless rigorous approach without prejudicing the underlying need for legal certainty” called for as the law’s response to the effect of the pandemic on commercial contracts by the British Institute of International and Comparative Law (April and May 2020). It would indeed be unfortunate if the Lloyds TSB case were held to have cut out all possibility of such an approach, especially when Lord Hope’s remarks on the subject were not necessary to the actual decision of the UK Supreme Court and perhaps not based on a full review of authority and principle.
Hector MacQueen, Professor of Private Law, University of Edinburgh
Acknowledgements
This blog is extracted from the author’s contributions on Scots contract law to two imminent publications: Corona and the Law, edd Ewoud Hondius, Marta Santos Silva, Christiane Wendehorst, Pablo Salvador Coderch, Andrea Nicolussi and Fryderyk Zoll (to be published online and in hard copy by Intersentia, July 2020) and Derecho de los Desastres: Covid-19, ed Sergio García Long (to be published online and in hard copy by the Pontificia Universidad Católica del Perú, July 2020).
The writer is grateful for helpful comments by his colleagues, Dr D J Carr, Ms L Richardson and Professor-elect A J M Steven, and by Professor D A O Edward, as well as for information provided by Scott Dickson.
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Endnotes
[1] See also the War Damage to Land (Scotland) Act 1941, s 1 (also still in force) under which no rent was payable by the tenant of a dwelling house not in occupation as a result of war damage, while where the tenant remained in occupation but the accommodation in the house was substantially reduced by war damage, the rent was to be likewise reduced.
[2] Bank L was however under immense Government pressure to save HBOS from collapse: see Perman 2012: ch 18 (‘Apocalypse Now’).
