(COURT OF APPEAL)· EL MUBARAK ALI EL IMAM vs. MOHAMMED ALI HASSAN AC-Appeal-27-58 Principles · Contract-Frustration-Impossibity of performance-Whether damages recoverable Where a contractual undertaking is not made absolutely, but on the assumption-express or implied-that certain situations of fact will remain as thery are ast the date of contracting, and those facts change without fault on the undertaker’s part, he is not liable damages to the other party. The latter can not recover money spent except in exceptional circumstances involving financial benefit to the undertaker. Fibrosa Spolka Akcyna v. Fairbairn Lawson Combe Barbour Ltd. (1943) A.C. 32, and the Law Refomr (Frustrated Contracts) Act 1943 considered. Appeal The contract in this case was to supply water for irrigation of the applicant’s land through a specific pump belonding to the respondent. Owing to altered conditions of the Nile, this supplying proved to be impossible. The applicant sued for damages for breach of contract and for recovery of money spent. Advocate: Mansour Khalid…for Applicant 26th November 1958, Babikir Awadalla J. :- In my opinion this application should be summarily dismissed. The case was in my view well tried by the Province Judge and the point was no doubt dealt with in its correct legal category. One mya say that impossibility of performance is not the proper rubric under which this case can be dealt with, because if the Respondent contracted to provide water for the cultivation and failed he has only himself to blame and he can not justify his failure by saying that it was out of his hands to comply with his promise.But is such reasoning sound? Certianly it can not be. Respondent did not in fact contract absolutely to provide water for the cultivation agreed upon, but his agreement has as its basis irrigation by the specific 80-inch pump by which the scheme is irrigable and if the circumstances of the river become inconsistent with the capacity of the said pump to draw water, then an implied condition has to be read inot the agreement discharging both parties from futher performance. There remains the question whether the Applicant can recover the money expended by him on a total or partial failure of consideration. Prior to Fibrosa v. Fairbairn (1943) A.C. 32 the rule was that the loss “lay where it fell.” That case allowed recovery where there was a total failure of consideration. It was folowed by the Law Reform (Frustrated Contracts) Act 1943, which allowed recovery even if the failure of consideration was only partial, but this Act gave the Court a very wide discretion and it is only normally in the case wher one party has benefited under a frustrated contract that he will have to pay for that benefit. This “benefit” factor is an important guide for the Court in excercising its discretion. In the present case the Respondent obtained nothing out of the amount expended by the Applicant in the cultivation and there were certainly mutual losses. I therefore consider that the Applicant is not at all entitled to recover anything. 26th November 1958. M.A. Abu Rannat C.J. : - I agree and the appeal is summarily dismissed. (Appeal summarily dismissed)