236 MODERN LAW REVIEW Dec., I938

danger. It Taylor v. Caldwell is explained, not on the ground of thedestruction of the subject-matter of the eontract, but of the implication ofa clause, then, since a similar clause may be implied in other circum-stances, it becomes possible to apply the doctn'ne of frustration to othertypes of cases.

Discharge by supervening impossibility of performance seems now sowell established as a. doctrine independent of its manifestations in specificcircumstances that there would appear to be no more need to employ thefiction of the implied term as a safeguard of this independence. The use offictions for the development of the law is a. commonplace of English legalhistory. But the art of using fictions requires courage to abandon them assoon as they have served their purpose. According to Tatam v. Gambaathis moment has now arrived. In support one may refer to recent develop-ments in the law of quasi-contract. The change introduced into the lawof impossibility of performance is exactly the same as that effected byCraven-Elh‘s v. Canons Ltd.“ and Brook’s Wharf and Bull Wharf Ltd. v.Goodman Bros.“ in the law of quasi—contract.“ The fiction of a notionalcontract is being sacrificed to give place to the dictates of natural justiceas represented by the doctrines of unjustified enrichment and impossibilityof performance." It may well be argued that the forces which have beenworking successfully in the field of quasi-contract against the ideas offreedom and sanctity of contract, which lie at the root of the fiction ofcontracts implied in law. should now be permitted to transform the doctrineof frustration. The extent of that transformation will appear from anattempt to sum up the result of Talent v. Gambaa in terms of the law ofevidence. Before this case it would still have been correct to assert theexistence of a presumption against discharge by impossibility of per-formance. although this presumption had been considerably weakened bythe greater ease with which terms providing for frustration could be im-plied, once the law began to consider the parties as reasonable men or"fair dealers” rather than as the "hard bargainers"" which in fact theymight be. The presumption has been reversed by Tate»: v. Gamboa. Asa result of this decision nothing short of an express agreement providingagainst discharge will prevent the operation of the doctrine of frustration.

, J. UNGER.

Abortion: Medical Aspects 0! Rex 0. Bonnie.

The case of Rex v. Bourne. so recently concluded, has been one of out-standing interest to the medical and legal professions, and has not beenwithout its interest for the public in general. To consider its significanceit is as well to review briefly the circumstances of the case.

Mr. Alec Bourne, a gynaecologist of the highest repute amongst hiscolleagues was asked to see a. girl of fourteen who had become pregnant

“ [1936] 2 KB. 403. For comment see 1 Mad. L.R., p. 76, and Friedmann."The Pn’nciple oi Unjust Enrichment in English Law," 16 Can. Bar RM). 243at .2 o.

p” [51937] I K.B. 534. See Friedmann, op. sit, at . 251.“ A comprehensive survey of the present state 0 the controversy containing

a full list of references. is given by Logan, "Restatement on Restitution," 2Mod. LR. 153.

“ In Hirji Mul'c' v. Chang Yuo Steamship Co., [1926] AC. 497. 510 LordSumner described stration as "a. device, by which the rules as to absolutecontracts are reconciled with a special exception which justice demands.”

1' Lord Sumner in Bank Lino. Ltd. v. Cape}, supra, at p. 453.

236 MODERN LAW REVIEW Dec., 1938

danger. If Taylor v. Caldwell is explained, not on the ground of the

destruction of the subject-matter of the contract, but of the implication of

a clause, then, since a similar clause may be implied in other circum-

stances, it becomes possible to apply the doctrine of frustration to other

typesof cases.

e by supervening impossibility of performance seems now so

well established as a doctrine independent of its manifestations in specific

circumstances that there would appear to be no more need to employ the

fiction of the implied term as a safeguard of this independence. The use of

fictions for the development of the law is a commonplace of English legal

history. But the art of using fictions requires courage to abandon them as

soon as they have served their purpose. According to Tatem v. Gamboa

this moment has now arrived. In support one mayrefer to recent develop-

ments in the law of quasi-contract. The change introduced into the law

of impossibility of performance is exactly the same as that effected by

Craven-Ellis v. Canons Lid. and Brook’s Wharf and Bull Wharf Lid. v.

Goodman Bros.** in the law of quasi-contract.!* The fiction of a notional

contract is being sacrificed to give place to the dictates of natural justice

as represented by the doctrines of unjustified enrichment and impossibility

of performance.” It may well be argued that the forces which have been

working successfully in the field of quasi-contract against the ideas of

freedom and sanctity of contract, which lie at the root of the fiction of

contracts implied in law, should now be permitted to transform the doctrine

of frustration. The extent of that transformation will appear from an

attempt to sum up the result of Tatem v. Gamboa in terms of the law of

evidence. Before this case it would still have been correct to assert the

existence of a presumption against discharge by impossibility of per-

formance, although this presumption had been considerably weakened by

the greater ease with which terms providing for frustration could be im-

plied, once the law began to consider the parties as reasonable men or

“fair dealers” rather than as the ‘“‘hard bargainers’’!* which in fact they

might be. The presumption has been reversed by Tatem v. Gamboa. As

a result of this decision nothing short of an express agreement providing

against discharge will prevent the operation of the doctrine of frustration.

J. UNGER.

Abortion : Medical Aspects of Rex v. Bourne.

The case of Rex v. Bourne, so recently concluded, has been oneof out-

standing interest to the medical and legal professions, and has not been

without its interest for the public in general. To considerits significance

it is as well to review briefly the circumstances of the case.

Mr. Alec Bourne, a gynaecologist of the highest repute amongst his

colleagues was asked to see a girl of fourteen who had become pregnant

4 [1936] 2 K.B. 403. For comment see 1 Mod. L.R., p. 76, and Friedmann,

“The Principle of Unjust Enrichment in English Law,’ 16 Can. Bar Rev. 243

at p. 250.

Ps [1937] 1 K.B. 534. See Friedmann,op.cit., at oe :* A comSe survey of the present state of the controversy containing

a full list o iaegis is given by Logan, ‘Restatement on Restitution,’’ 2

Mod. L.R. 15

a In Hini Mulji v. Cheong Yue Steamship Co.,os[2926] A.C. 497, 510 Lord

Sumner Highae tion as ‘‘a device, by w. the rules as to absolute

contracts are reconciled with a special exception whichjustice demands.”

1 Lord Sumner in Bank Line, Lid. v. Capel, supra, at p. 453.