Editing Impossibility of performance (section)

{{Short description|In law, the impossibility of performing a contractual duty}}
{{about|the excuse for non-performance of a contract|other uses|Impossibility (disambiguation)}}

{{more citations needed|date=September 2014}}

{{Contract law}}

The doctrine<ref>Sources also speak of a principle</ref> of '''impossibility''' or '''impossibility of performance''' or '''impossibility of performance of contract''' is a [[Legal doctrine|doctrine]] in [[contract law]].

In [[contract law]], '''impossibility''' is an excuse for the nonperformance of duties under a [[contract]], based on a change in circumstances (or the discovery of preexisting circumstances), the nonoccurrence of which was an underlying assumption of the contract, that makes performance of the contract literally impossible.

For example, if Ebenezer contracts to pay Erasmus £100 to paint his house on October 1, but the house burns to the ground before the end of September, Ebenezer is excused from his duty to pay Erasmus the £100, and Erasmus is excused from his duty to paint Ebenezer's house; however, Erasmus may still be able to sue under the theory of [[unjust enrichment]] for the value of any benefit he conferred on Ebenezer before his house burned down.

The parties to a contract may choose to ignore impossibility by inserting a [[hell or high water clause]], which mandates that payments continue even if completion of the contract becomes physically impossible.

Sometimes it is [[Impossibility of performance of contract in war|impossible]] to perform a contract as a result of [[war]].<ref>As to impossibility of performance of contract during war, see Arnold Duncan McNair, "War-Time Impossibility of Performance of Contract", Essays and Lectures Upon Some Legal Effects of War, Cambridge, at the University Press, 1920, Chapter 5, [https://books.google.com/books?id=NlxgIWX9NPYC&pg=PA78 p 78]; Henry Campbell, "Impossibility of Performance", The Law of War and Contract, Humphrey Milford, Oxford University Press, 1918, chapter 5, [https://archive.org/details/cu31924016952628/page/n286/mode/1up p 263] et seq [https://books.google.com/books?id=VO3fAAAAMAAJ Google]; K V R Townsend, "Impossibility of Performance of Contracts due to War-Time Governmental Interference" (1941) 8 Current Legal Thought [https://heinonline.org/HOL/LandingPage?handle=hein.journals/curletho8&div=27&id=&page= 150]; "Impossiblity of Performance of Contracts due to War-Time Regulations" (1918 to 1919) 32 Harvard Law Review [https://heinonline.org/HOL/LandingPage?handle=hein.journals/hlr32&div=54&id=&page= 789]; Weber, The Effect of War on Contracts, [https://books.google.com/books?id=aj4_AQAAIAAJ 2nd Ed], 1946, p 445 et seq; MacKinnon, Effect of War on Contract: Being an Attempted Analysis of the Doctrine of Discharge of Contract by Impossibility of Performance: With a Résumé of the Principal Cases decided in the English Courts during the Present War, 1917 [https://books.google.com/books?id=lZxBAQAAMAAJ Google]; Trotter, The Law of Contract during War, 1914, p 57, 58 and 59 et seq [https://books.google.com/books?id=Ds84AQAAIAAJ Google]; Trotter, The Law of Contract during and after War, [https://books.google.com/books?id=H8EzAAAAIAAJ 3rd Ed], 1919, p 118 et seq; Trotter, Supplement to the Law of Contract during War, 1915, pp 76, 77 and 78 et seq [https://books.google.com/books?id=Rs84AQAAIAAJ Google]; and Coleman Philipson, "Where new circumstances would make lawful fulfilment impossible", The Effect of War on Contracts, 1909, p 78 [https://books.google.com/books?id=pHBDAAAAIAAJ Google].</ref>