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Doctrine of Frustration as the Second Level of Protection: The Case of Frustrated

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 DOCTRINE OF FRUSTRATION AS THE SECOND LEVEL OF
PROTECTION: THE CASE OF FRUSTRATED TRAVELLERS
Ahmad Afiq Bin Hasan & Nuraisyah Chua Abdullah1

Ahmad Afiq Bin Hasan

LL.M Candidate, Faculty of Law, Universiti Teknologi MARA (UiTM),
40450 Shah Alam, Selangor Darul Ehsan, Malaysia.
E-mail: ahmadafiqhasan@gmail.com

ABSTRACT

Doctrine of frustration will apply in the absence of force majeure clause or where the force
majeure clause suffers from drafting ambiguities. At present, it remains to be observed whether a
force majeure clause may be struck off by courts on account of manifest unfairness. Realising
the important roles of force majeure clause in protecting the economic interest of travellers and
travel operators, the clause is now a common phenomenon in package holiday contracts.
However, the prevalence use of unregulated inbound standard form contracts and the serious
flaw of legislation governing outbound standard form contracts pose challenges to travellers to
strike bargain and negotiate the terms of the force majeure clause. This paper is the direct result
of an idealistic view in hoping that doctrine of frustration would serve as the second level of
protection for frustrated travellers in a friendly-Malaysian-way. By applying qualitative and
comparative research methods, the paper analyses the local statutory provisions on the
adjustment of right and liabilities of parties to frustrated contract and make comparative
assessment with equivalence provisions of selected foreign jurisdictions. The paper concludes
that a detailed frustration related statutory provision could assist the Tribunal for Consumer
Claims in reaching settlement, assist non-legal minds from the strict repercussion of mistake of
law and safeguard the healthy environment of tourism industry.

Keywords: travellers; package holiday contract; frustration of purpose; adjustment of right and
liabilities; force majeure clauses

INTRODUCTION

Outbound package holiday contracts are governed by the Standard Terms and Conditions for
Outbound Tour Packages (STCOTP) in the Travel Industry (Tour Operating Business and Travel
Agency Business) Regulations 1992. All outbound package holiday contracts in the market must
strictly comply with the STCOTP. The enacting of the STCOTP is a plausible commitment of
the Ministry of Tourism Malaysia (MOTOUR) in regulating the use of standard form contracts in
the outbound tourism industry. The model for force majeure clause is contained in the STCOTP.
The legal implication seems to be that, through the existence of the force majeure clause in the
package holiday contracts, doctrine of frustration would not be applicable. Unfortunately, no

1
Senior Lecturer (Ph.D) and the Deputy Dean (Research & Industry Linkages), Faculty of Law, Universiti
Teknologi MARA (UiTM), 40450 Shah Alam, Selangor Darul Ehsan, Malaysia.
 Consumer in Trade/Redress

equivalence provision has been enacted to govern the inbound package holiday contracts. This
may shape the inbound tourism industry into two, different but concurrent, directions; (i) the
prevalence use of standard form contracts in the market is, therefore, unregulated; and (ii)
doctrine of frustration becomes relevant since inbound travellers and travel operators may not
have inserted force majeure clause in the package holiday contracts.

In the realm of frustrated contract, a contract may be discharged either by the language of the
statute governing the doctrine of frustration or through special provision provided under the
contract itself. The function of frustration is to put a contract to an end automatically and to
release the contracting parties from further performance arising from the term of the contract. In
Malaysia, the existing frustration related statutory provisions are section 57 of the Contracts Act
1950 which deals on supervening impossibility and supervening illegality, section 12 of the
Specific Relief Act 1950 which deals on partial frustration, sections 15 and 16 of the Civil Law
Act 1956 which deal on the adjustment of rights and liabilities of parties to frustrated contracts,
and section 66 of the Contract Acts 1950 which deals on restitution of benefit received under a
void contract. It has been propounded that where as a matter of construction the contract itself
contains, either expressly or impliedly, a term according to which it will stand discharged on the
happening of certain circumstances, the dissolution of the contract would take place under the
term of the contract.2 Therefore, section 57 of the Contracts Act 1950 would not be applicable.3
This is known as contingent contract governed under Part IV of the Contracts Act 1950. Force
majeure clause is a contingent contract founded under section 33 of the Contracts Act 1950.4

FRUSTRATION IN THE CONTEXT OF MALAYSIAN CONTRACTS ACT 1950

Why the need for improvising and strengthening the legal framework on frustration is important
for the travel industry? The doctrine of frustration will apply in the absence of a force majeure
clause.5 Sometimes, where the contracting parties had provided force majeure clause in the
contract as a mean to protect their interests, frustration will, nevertheless, apply because the
disputed force majeure clause suffers from drafting ambiguities. At present, it remains to be
observed whether force majeure clause may be struck off for being manifestly unfair especially
where the clause was not the result of fair and active negotiation between the travel agency
company and the traveller. It is, therefore, submitted that in the absence of force majeure clause,
frustration would automatically act as the second level of protection for the contracting parties.
Originally, frustration is an invention of court in order to do justice to the unfortunate contracting
parties. It gradually received statutory recognition as a legitimate defence for non-performance
and legislations were then enacted to assist court in arriving at a fair settlement following the
drastic consequences of frustration. Even so, it is very difficult to foresee the circumstances in
which the courts will invoke the doctrine.6 Many countries had redefined the concept of
frustration in their local legislation differently from its traditional version. The role of the statute
will continue to be important to illustrate what is the correct statement of law on frustration.

2
See Satyabrata Ghose v. Mugneeram & Co. 1954 AIR 44, 1954 SCR 310.
3
See Cheong (2010).
4
See Sundrum (2005).
5
See Katsivela (2007).
6
See McKendrick (1995).

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 Consumer in Trade/Redress

However, in Malaysia, the term ‘frustration’ appears nowhere in the Contracts Act 1950. The
English doctrine of frustration is assumed to be part of Malaysian contract law by virtue of
section 57 of the Contracts Act 1950. Under section 57, frustration is recognised in the form of
supervening impossibility and supervening illegality.7 What really constitutes as supervening
impossibility and supervening illegality is a mixed question of law and question of fact which
has been left by the legislature for the court to interpret with the assistance of decided cases.
According to the construction of section 57, several points may be drawn, (i) the frustrating
event must occur after the contract has been concluded; (ii) that its occurrence could not be
prevented by the performing party; that (iii) compensation is payable to the other party of the
contract who sustained loss if the performing party, by some reason, knew or might have known,
of the frustrating event before the contract is concluded; and that (iv) the standard of diligence
assigned to the performing party in relation to his knowledge of the frustrating event is one of
reasonable diligence.8

While it is clear that supervening illegality may refer to a situation where the contractual
obligation between the travel agency company and traveller is discharged by the operation of
law, it is questionable as to the true interpretation of supervening impossibility? The common
factual of impossibility may refer to the destruction of the subject matter of the package holiday
contract. This refers to physical impossibility which derives from the landmark case of Taylor v.
Caldwell.9 What is the position of law in a situation where the performing party, the travel
agency company, is capable of performing his contractual obligation but the underlying purpose
of the package holiday contract which constitutes the inducement to the contract was
diminished? What is the position of law if the difficulties brought by the frustrating event affect
only part of the terms of the package holiday contract? What is the implication to the right of the
contracting parties, i.e. the travel agency and traveller when any of the situations mentioned
above tragically strikes?

Apparently, section 57 was not exhaustively designed to provide the answer for these issues.
Therefore, the courts would have to read section 57 of the Contracts Act 1950 together with
other relevant provisions in granting relief; a technique invented by court when encountering
non-exhaustive provision. The courts may also conveniently refer to section 3 and 5 of the Civil
Law Act 1956 as a tool to import common law decided cases to clarify the local frustration
related statutory provisions. It has been observed that the need to resort to the common law, as
the main source of the doctrine, “may be minimal and drastically reduced in the future”.10
However, it remains to be observed whether the Malaysian courts would be prepared to declare
that the Contracts Act 1950 is exhaustive enough in dealing with frustration related cases in the

7
“A contract to do an act which, after the contract is made, becomes impossible, or by reason of some event
which the promisor could not prevent, unlawful, becomes void when the act becomes impossible or
unlawful”. See section 57(2) of the Contracts Act 1950.
8
“Where one person has promised to do something which he knew, or, with reasonable diligence, might have
known, and which the promisee did not know, to be impossible or unlawful, the promisor must make
compensation to the promisee for any loss which the promisee sustains through the non-performance of the
promise”. See section 57(3) of the Contracts Act 1950.
9
See Taylor v. Caldwell (1863) 3 B. & S. 826.
10
See Cf Ho Weng Leong v. Ng Kee Chin [1996] 5 MLJ 139 as per Abdul Malik Ishak J.

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 Consumer in Trade/Redress

similar way which had been taken by the Supreme Court of India on the Indian Contracts Act
1872 in the case Satyabrata Ghose v. Mugneeram Bangur & Co.11

FRUSTRATION OF PURPOSE OF TRAVELLING

Frustration of purpose emerged from the state of confusion created by the English courts in the
landmark cases of Krell v. Henry12 and Chandler v. Webster13; better known as the ‘coronation
cases’.14 In the context of package holiday contract, frustration of purpose is more relevant
towards the protection of the travellers’ interest. The underlying object of package holiday
contract is to afford pleasure, enjoyment and peace of mind.15 It is plain that when a package
holiday contract was concluded between a newly married couple and a travel agency company
for a honeymoon vacation to Paris, the continued existence of the spouse forms part of the
underlying purpose to the other spouse. No benefit would be served if either one of the spouse
has to travel alone. In a hypothetical situation where the husband has been subpoenaed by court
to testify as a principal witness during the date of departure or he had involved in road accident
and has to undergo minor operation, does the underlying purpose of the contract ceased? Several
points may be drawn, (i) By assuming that the package holiday contract was concluded a month
ago, in these circumstances, the couple has no actual or constructive notice of the court subpoena
and that road accident is a clear cut example of unfortunate instances; (ii) The travel agent may
reasonably infers that the honeymoon vacation is meant for the couple’s wedding anniversary
celebration in that the absence of either one of the spouse would render the contract senseless;
(iii) The road accident or the court subpoena do not, by any means, affect the travel agency
company contractual performance. The flight tickets have been purchased and the reservation for
the hotel room has already been made; (iv) The diminished value of the contract is only sustained
by the couple and not the travel agency company.

Where does the peculiarity of the subject matter of the holiday contract lies, then? There are
many ways in which a package holiday offered by a travel agency company is unique and
appealing than the one offered by other travel agency companies in the market. This may due to
the attractive combination of itineraries in the package holiday sold, the good price offered at the
particular date of purchase or the vacation destination offered. However, this kind of personal
preferences that led to the selection of the travel agency company may be challenged on
evidential grounds. It would seems that the onus lies on the travellers to demonstrate the reasons
on why he chose to enter the package holiday contract with the selected travel agency company
and differed the others. Under Regulation 10 of the UK Package Travel, Package Holidays and
Package Tours Regulations 1992, it is an implied term that where a travellers is prevented to
continue with the package holiday contract, he or she may transfer the booking to another person
provided that he or she gives reasonable notice of his or her intention to transfer before the date
of departure.

11
See Halsbury’s Law of Malaysia (2004) Vol. 23 Para [390.425] 545.
12
See Krell v. Henry [1903] 2 K.B. 740.
13
See Chandler v. Webster [1904] 1 K.B. 493.
14
These cases are the supporting authorities to hold that a contract is frustrated whenever the principal purpose for
which the contract was entered to ceased to exist. This sole purpose, however, must be communicated to the
performing party before the contract is entered. Further, there must be some peculiarities assigned to the subject
matter which attributable to the purpose of the contract.
15
See Farley v. Skinner [2002] 2 A.C. 732; Jarvis v. Swans Tours Ltd. [1973] Q.B. 233.

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 Consumer in Trade/Redress

Unfortunately, in Malaysia, it seems that under the STCOTP, postponement or transfer of tour
may not be possible.16 This is due to the absence of express provision authorising such practices.
It is important to note that the STCOTP only govern outbound package holiday contracts.
Inbound package holiday contracts, however, has been left unregulated. Inbound package
holiday travellers may attempt to negotiate such a term even though the chance is slim due to the
prevalence use of unregulated standard form contract in the market. Therefore, the available
alternatives for the travellers are either to purchase trip cancellation insurance or to play with the
risk into invoking the common law doctrine of frustration of purpose in court. Travellers may
attempt to negotiate the terms of the package holiday contract to include force majeure clauses
that would cover the travellers’ interest in the event of frustration of purpose as discussed above.
However, the chance is also slim since the model of force majeure clause provided under the
STCOTP is one-sided.17 It only confers cancellation right for unforeseen circumstances to the
travel agency company. For inbound package holiday travellers, the chance is also slim due to
the prevalence use of unregulated standard form contract in the market.

REMEDIAL MEASURES FOR FRUSTRATED HOLIDAY CONTRACTS

The landmark case on this issue is the case of Fibrosa Spolka Akcyjna v. Fairbairn Lawson
Combe Barbour Ltd.18 Several points may be drawn from this case; (i) The common law did not
warrant compensation for partial frustration. Therefore, the performing parties will have to bear
the loss if substantial performance has been made and subsequently wasted when a frustrating
event tragically strikes; and that (ii) the other party of the contract may recover the exact sum of
initial payment which had been paid notwithstanding the extent to which the performance has
been made. The unsatisfactory result of the case had led to the enacting of the UK Law Reform
(Frustrated Contracts) Act 1943. Following the enacting of the UK Law Reform (Frustrated
Contracts) Act 1943, partial frustration and the return of initial payment paid for a consideration
which had wholly failed have received statutory recognition. The provision on the adjustment of
rights and liabilities of parties in frustrated contracts as provided under the UK Law Reform
(Frustrated Contracts) 1943 was viewed as the legislative measures to prevent unjust enrichment
of either party to the contract at the expense of the other.19

Under the STCOTP, there is a provision which states that the travel agency company reserves the
right to cancel a tour upon “Act of God, war, strike, riot or order from the Government of
Malaysia which is beyond its control”. Thereafter, the company shall either offer alternative tour
or refund the travellers on a sum less the administrative fees.20 On this account, reference should
be made to section 15(2) of the Civil Law Act 1956 which provides to the effect that money paid
in the pursuance of the contract before the time of discharge shall be recoverable and money
which is payable cease to be payable. It further states that the Court may allow the performing
party to retain or recover the whole or any part of the money paid or payable if the performing
party had incurred expenses, before the time of discharge, in the performance of his contractual

16
See Ahmad Afiq Bin Hasan & Dr. Nuraisyah Chua Abdullah (2012)a.
17
See Ahmad Afiq Bin Hasan & Dr. Nuraisyah Chua Abdullah (2012)b.
18
See Fibrosa Spolka Akcyjna v. Fairbairn Lawson Combe Barbour Ltd. [1943] A.C. 32.
19
See B.P. Exploration Co. (Libya) Ltd. v. Hunt (No.2) [1979] 1 W.L.R. 783 as per Robert Goff J.
20
See clause 4.

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 Consumer in Trade/Redress

obligation. In deciding the just sum which may be retained by the performing party, the court
may consider the overhead expenses and any work or services performed personally by the
performing party.21 The court, however, shall not consider any sums which is payable to the
performing party under any contract of insurance.22 Reference should also be made to section
16(3) of the Civil Law Act 1956 which states, “Where any contract to which section 15 applies
contains any provision which, upon the true construction of the contract, is intended to have
effect in the event of circumstances arising which operate … to frustrate the contract … the
Court shall give effect to the said provision and shall only give effect to section 15 to such extent
… as appears to the Court to be consistent with the said provision”. It would seem that the
operative part of the provision under the STCOTP which is ‘consistent’ with section 15(2) is the
phrase “less the administrative fees”, being the equivalence reference of “expense” under the
section.

From the construction of section 15(2) of the Civil Law Act 1956, it would seem that only the
court, as opposed to the tribunal, which is empowered to decide the just sum that would
constitute as the administrative fees.23 However, in real circumstances, judicial intervention will
only relevant where there is dispute arises, i.e. where the amount of the administrative fees was
challenged by the travellers. It is unlikely that the affected travellers would resort to court for
small amount of administrative fees which is unsupported by cogent evidence. If the matter is
brought to court, which party has the course of action?24 From section 15(2), the general rule is
that the travellers would have the course of action to recover the money paid when a tour is
cancelled. The travel agency company would then make a reply in relation to the administrative
fees to which it wishes to retain. The travel agency company would only have the course of
action to recover the administrative fee if the tour fare remained unpaid before the time of
discharged.

Technically, how would the court calculate the ‘administrative fee’ in applying section 15(2)?
There are several approaches which have been introduced by legal writers in dealing with this
issue.25 The first approach is to equally divide the purported sum of the administrative fees so
that both travellers and the travel agency company equally shares the implication of frustration;
being the amount of loss which neither party is responsible. This approach has been incorporated
in section 5(4) of the British Columbia Frustrated Contracts Act 1974 and section 7(2)(c) of the
South Australia Frustrated Contracts Act 1988. The second approach is to allow the travel
agency company to be entitled to the total sum which has, in fact, been incurred, especially when
the expenses is wasted. Apparently, however, in the absence of equivalence provision on the
calculation in the local statute, the first approach would fatter the court discretion in quantifying

21
See section 15(4) of the Civil law Act 1956.
22
See section 15(5) of the Civil law Act 1956.
23
This might be the reason because in UK, small claims are litigated in small claims courts hence small claims
courts may fall within the term of “court” in section 1(2) of the UK Law Reform (Frustrated Contracts) 1943. In
Malaysia, however, small claims may falls within the jurisdiction of Tribunal for consumer claims. Therefore, it
would seem that the tribunal is not empowered by section 15(2) of the Malaysian Civil Law Act 1956 to make
adjustment of right and apportion the loss between the parties of frustrated contracts. Compare the expression of
“court” in section 15(2) of the Malaysian Civil Law Act 1956 with the provisions on unfair contract terms under
Malaysian Consumer Protection Act 1999 which employs the terms “a court or the Tribunal”.
24
See Mckendrick (1995); Beale (2012).
25
See Mckendrick (1995); Beale (2012).

Proceedings of the International Conference on Consumerism 2013 (ICC2013) 317

 Consumer in Trade/Redress

the just sum. In addition, equal share of loss would not be the better solution if the losses are
very unequal.26 The second approach, on the other hand, would constitute as a protection for the
economic interest of the performing party against the implication of frustrating event.27 Both of
these approaches has been considered by Garland J in Gamerco SA v. ICM/ Fair Warning
Agency Ltd.28 Having considered the loss suffered by the defendants, his lordship was of the
opinion that justice is done by making no deduction under the proviso.

Another issue which merits a discussion is what could constitute as the administrative fees? It
has been articulated that the expenses incurred by the travel agency company must be
specifically for a particular traveller – a way which would put a bar against commercial
speculation that a travel agency company would enter a future contract with travellers.
Therefore, money paid in advance to the service providers or the ‘over-table’ payment made for
block-bookings, in contemplation of the sale of package holiday to potential travellers which is
yet to be identified, is not recoverable.29 It remains to be observed, however, whether the courts
would be prepared to entertain travel agency claims on the accounting of the reasonable but non-
separable expenses. These include the electrical or telecommunication expenses such as the
internet, fax, telephone, and printing cost or item purchased in bulk such as papers for
documentation. Even though the affected travel agency company would be put on strict proof for
these kinds of claims as ‘administrative fee’, it is much likely that the court would make
calculation based on pro-rata basis since the expenses is, logically, had been incurred. The just
sum through this kind of judicial pronouncement may or may not be above the exact expenses
incurred. Can consultation fee chargeable to the consumer be regarded as the administrative
fees? From the proviso, it is plain that the sum incurred as expenses must be one that is incurred
‘in the performance of’ the contract. If the package holiday contract is deemed to be concluded
once the tour reservation is confirmed, it would seem that consultation fee is a pre-contract
expenses. However, it is open for argument that the pre-contract expenses is incurred in the
reasonable belief that a contract will be concluded and that the expenses so incurred may be
counted in.30

ONUS OF PROOF

To whom the onus to prove the expenses incurred lies; the traveller or the travel agency
company? In Lobb v. Vasey Housing Auxiliary31 it was held that it is for the defendants to
demonstrate that, in all circumstances, they should in just be entitled to retain the initial payment.
This principle has been followed by Garland J in Gamerco SA v. ICM/ Fair Warning Agency
Ltd.32 However, it was articulated that should the principle stand, this would means that the
defendant will have to bear the losses if he fails to satisfy the onus. 33 To satisfy the onus would
be quite challenging when the expenses were not wasted and can still be used for the

26
See Gamerco SA v. ICM/ Fair Warning Agency Ltd [1995] 1 WLR 1226, QBD p.1234.
27
See Mckendrick (1995); Beale (2012).
28
See Ibid.
29
See Saggerson (1999).
30
See Mckendrick (1995); Beale (2012)..
31
See Lobb v. Vasey Housing Auxiliary [1963] V.R. 239.
32
See Gamerco SA v. ICM/ Fair Warning Agency Ltd [1995] 1 WLR 1226, QBD p.1234.
33
See Mckendrick (1995); Beale (2012).

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 Consumer in Trade/Redress

performance under other contract.34 In addition, the court is empowered to apportion the losses
under the proviso regardless of whether the onus has been satisfied or not.

TRAVELLERS’ RECOVERY OF POST-FRUSTRATION PAYMENT

One may wonder what will happen to the sum paid by the travellers after the time of discharge of
holiday contract? Section 15(2) of the Civil Law Act 1956 which, in turn, was modelled on the
section 1(2) of the UK Law Reform (Frustrated Contracts) 1943 only deals with money paid or
payable before the time of discharge. Under the Standard Terms and Conditions for Outbound
Tour Packages, a maximum deposit of 25% of the tour fare is payable during the conclusion of
the contract and the balance must be made within 14 days before the date of departure for Free
Independent Traveller (FIT) or 21 days for group tour packages. 35 Within the permitted time
range, a frustrating event tragically strikes and yet, in ignorance of the frustrating event, a
traveller duly made payment of the remaining amount unsettled as required under the package
holiday contract. How may he or she recover the sum so paid? It has been articulated that the
principles which would be applicable to the money paid after the time of discharge is those under
the common law.36 These include (i) claim for restitution of the benefit received under a contract
which has became void; or (ii) claim on the ground of mistake of fact where the travellers plead
unawareness of the frustrating event; or (iii) claim on the ground of mistake of law where the
travellers plead unawareness of the legal characteristic of the event being a frustrating event.
However, it is important to note that under section 22 of the Contracts Act 1950, a contract is not
voidable owing to mistake of law thus, making the claims for post-frustration payment
unsubstantiated. Conversely, under section 21, a contract is void if both parties are under a
mistake of fact. Restitutionary claim has received statutory recognition under section 66 of the
Contracts Act 1950. It is submitted that the claim for post-frustration payment can still be made
on the ground of failure of the legal consideration. Comparatively, it is to be noted that post-
frustration payment is specifically governed under section 7(6) of the South Australia Frustrated
Contracts Act 1988 and section 5(4) of the New South Wales Frustrated Contract Act 1978.

CONCLUSION

The doctrine of frustration is only relevant to a package holiday contract which is inadequately
drafted. Legally advised contracting parties would have provided provision such as force
majeure clauses in the contract to deal with unforeseen circumstances. However, the one sided
force majeure clause in the STCOTP means that travellers would have to heavily rely on the
doctrine of frustration. The doctrine of frustration is much relevant to inbound package holiday
since no similar provision that governs outbound package holiday contracts applicable to the
inbound package holiday contracts. British Columbia, New South Wales, and South Australia,
have their parent act in governing matters that arises from frustrated contracts. These
sophisticated provisions may be compared with section 57 of the Contracts Act 1950.
Throughout the history of our legal system, courts have invented and followed precedent which
introduces myriad style of interpretation in granting relief. Courts have used legislative history,
preamble of the statute, cross-refer technique and construed the relevant provision narrowly or

34
Scotland: Davis and Primrose Ltd v. Clyde Shipbuilding and Engineering Co. Ltd 1917 1 S.L.T. 297.
35
See clause 1.
36
See Mckendrick (1995); Beale (2012).

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 Consumer in Trade/Redress

broadly in order to reconcile and find the logic behind a particular provision. The courts may
also conveniently refer to section 3 and 5 of the Civil Law Act 1956 as a tool to import foreign
decided cases to clarify local statute. It is viewed that this judicial struggle would gradually
emasculate the Contracts Act 1950 being the main source of reference for contract law. It is
timely that the restatement of section 57 should be done by making some improvement and
incorporating sections 15 and 16 of the Civil Law Act 1956, section 12 of the Specific Relief Act
1950 and section 66 of the Contracts Act 1950 into section 57 of Contracts 1950. Judicial
activism should be controlled by a clear legislation defining a particular legal theory such as
frustration and its implication to the travellers. A clear law not only would assist courts in
granting relief but also tribunal for consumer claims where both parties are not represented by
lawyers to assist the president of the tribunal. A clear law would also assist travellers in
understanding what really means by frustration and thus, they may avoid themselves from the
strict repercussion of mistake of law.

REFERENCES

Ahmad Afiq Bin Hasan & Nuraisyah Chua Abdullah (2012)a, Force Majeure in Package holiday
Contracts: Issues & Challenges for Travellers, paper presented in National Research &
Innovation Conference for Graduate Students in Social Sciences 2012 held from 7th-9th
December 2012 at Mahkota Hotel, Malacca, Malaysia.

Ahmad Afiq Bin Hasan & Nuraisyah Chua Abdullah (2012)b, Force Majeure Clauses in Package
holiday Contracts: The Islamic Perspective & Malaysian Approach, paper presented in
the 1st International Islamic Tourism Standard Conference held from 5th-6th December
2012 at Putra World Trade Centre (PWTC), Kuala Lumpur, Malaysia.

Beale, H. (2012) Chitty on Contracts, Sweet & Maxwell: UK.

Cheong, M. F. (2010) Contract Law in Malaysia, Sweet & Maxwell Asia: Selangor.

Halsbury’s Law of Malaysia (2004) Vol. 23 Para [390.425] 545.

McKendrick, E. (1995) Force Majeure and Frustration – The Consequences of Frustration The
Law Reform (Frustrated Contracts) Act 1943, E. (Ed.) Force Majeure and Frustration of
Contract, Lloyd’s of London Press Ltd, pp. 223-244.

Saggerson, A. (1999) Delayed Departure & Cancellation. Hope For Consumers The Other Side
of Midnight, International Travel Law Journal, 6-11.

Sundrum, K. (2005) General Paper, LexisNexis: Selangor.

Katsivela, M. (2007) Contracts: Force Majeure Concept or Force Majeure Clauses?, 12 Uniform
Law Review N.S., 101.

Proceedings of the International Conference on Consumerism 2013 (ICC2013) 320

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