Avery v Bowden
An innocent party who does not accept an anticipatory breach keeps the contract alive for both sides, and can lose its claim if the contract is later frustrated.
Facts
Bowden chartered a ship from Avery to load a cargo at Odessa within 45 days. When the ship arrived, Bowden's agent repeatedly told the master that there was no cargo for him and advised him to leave. The master chose to stay, hoping that Bowden would perform. Before the 45 days had expired, the Crimean War broke out between Britain and Russia, which made it illegal to load a cargo at Odessa, a Russian port. Avery sued Bowden for breach of contract.
Legal principle
The court held that Avery had no claim. Even if Bowden's statements amounted to a renunciation of the contract, the master had not accepted them as such, because he stayed at Odessa hoping that the cargo would be loaded. The contract therefore remained alive, and it was frustrated by the outbreak of war before the time for loading had expired, which discharged both parties before any actual breach occurred. The case shows the risk for an innocent party in affirming the contract after an anticipatory breach.
Related cases on discharge and breach
- Bolton v Mahadeva [1972] 1 WLR 1009
- Cutter v Powell (1795) 6 Term Rep 320
- Federal Commerce & Navigation Co Ltd v Molena Alpha Inc (The Nanfri) [1979] AC 757
- Fercometal SARL v Mediterranean Shipping Co SA (The Simona) [1989] AC 788
- Frost v Knight (1872) LR 7 Ex 111
- Geys v Société Générale [2012] UKSC 63, [2013] 1 AC 523
- Hochster v De la Tour (1853) 2 E & B 678
- Hoenig v Isaacs [1952] 2 All ER 176
Studying contract law? Our tutors help you understand and apply cases like this in essays, problem questions and exams. Request a quote or browse our law notes.
This summary is for study and revision and is not legal advice. Although our case summaries are checked for accuracy, we do not guarantee that they are free from errors or omissions. Always read the full judgment for the court's reasoning.
