Editing Impossibility of performance

{{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>

==Australia==
Frustration usually involves impossibility of performance.<ref>As to impossibility of performance in Australia, see Bradford A Caffrey, "Impossibility: Frustration Doctrine", Guidebook to Contract Law in Australia, [https://books.google.com/books?id=rH1RAQAAIAAJ 4th Edition], CCH Australia, 1991, chapter 14, p 357; J W Carter and D J Harland, "Impossibility of Performance", Contract Law in Australia, [https://books.google.com/books?id=33VAAQAAIAAJ Third Edition], Butterworths, 1996, p 715; "Impossibility of Performance"/"Impossibility", The Australian Digest, 2nd Edition, Law Book Company of Australasia, 1966, [https://books.google.com/books?id=DD1AAQAAIAAJ vol 6], divn 4 of "VII Contracts", col 394; Stewart, Swain and Fairweather, Contract Law: Principles and Context, Cambridge University Press, 2019, [https://books.google.com/books?id=uzCdDwAAQBAJ&pg=PA277 p 277] et seq; Yorston and Fortescue, "Impossibility of Performance", Australian Mercantile Law, [https://books.google.com/books?id=afjzAAAAMAAJ 15th Ed], 1978, p 104; "Impossibility of Performance arising from an Act of State" (1916) [https://books.google.com/books?id=4HdFAQAAMAAJ 38] Australian Law Times 5 (22 July 1916); and Yin, Kozlina, Green, Siliquini-Cinelli, Laryea and Spagnolo, "Contracts which are impossible to perform", Contract Law: Cases and Materials, 2021 chapter 15.2.5, [https://books.google.com/books?id=P0_6DwAAQBAJ&pg=PA483 p 483].</ref> As to whether the non-existence of the subject matter of a contract constitutes (initial) impossibility of performance, see [[McRae v Commonwealth Disposals Commission]].<ref>The Australian Digest, 2nd Ed, 1966, [https://books.google.com/books?id=DD1AAQAAIAAJ vol 6], col 404. (1951) [https://books.google.com/books?id=g-tOAQAAIAAJ 45] Queensland Justice of the Peace and Local Authorities' Journal 149 and 173.</ref> Cf. [[Res extincta]].

==England and Wales==
{{main|Impossibility of performance in English law}}
A contract may be frustrated by impossibility of performance.<ref>T Anthony Downes. "Impossibility". Textbook on Contract. Fifth Edition. 1997.  Section 11.4.2.1 at [https://archive.org/details/textbookoncontra0000down/page/308/mode/1up p 308].</ref>

In 1997, Downes said that impossibility and impracticability were separate in England and Wales, and that impracticability was not usually found to result in frustration.<ref>T Anthony Downes. Textbook on Contract. Fifth Edition. 1997. [https://archive.org/details/textbookoncontra0000down/page/311/mode/1up p 311].</ref>

The [[English law|English]] case that established the doctrine of impossibility at [[common law]] is ''[[Taylor v Caldwell]].''<ref>3 B.&S. 826, 122 Eng.Rep. 309 (K.B. 1863).</ref>

==New Zealand==
Wilkins and Davies Construction Co Ltd v Geraldine Corporation [1958] NZLR 985 is relevant.<ref>As to impossibility of performance in New Zealand, see H Jenner Wily (ed), "Impossibility of Performance", The Abridgement of New Zealand Case Law, Butterworths, Wellington, 1964, [https://books.google.com/books?id=FqBAAQAAIAAJ vol 3], p 238; "Impossibility of Performance", Australian and New Zealand Commentary on Halsbury's Laws of England (Fourth Edition), Butterworths, 1974, [https://books.google.com/books?id=JdRAAQAAIAAJ Chapter 20], para C1231 at p 75 et seq. "Contract: Impossibility of Performance" in "Case and Comment" (1950) [https://books.google.com/books?id=ywgvAAAAIAAJ 26] NZLJ 55 and 72 (7 and 21 March 1950); "Discharge of Contract: By Subsequent Impossibility of Performance" (1931) [https://books.google.com/books?id=vP0uAAAAIAAJ 7] NZLJ 286 (27 October 1931); Northey and Leys, Commercial Law in New Zealand, [https://books.google.com/books?id=nmlEAQAAIAAJ 5th Ed], 1974, pp 178 to 189.</ref>

==South Africa==
{{main|Supervening impossibility of performance in South African law}}
A contract may be ended by supervening impossibility of performance.<ref>As to supervening impossibility of performance in South Africa, see William Arthur Ramsden, Supervening Impossibility of Performance in the South African Law of Contract, Juta & Co, 1985, ISBN 0-7021-1629-7; William Arthur Ramsden, [https://wiredspace.wits.ac.za/items/61856c7a-118a-4ddb-88e7-fc4b60225273 Supervening Impossibility of Performance in the South African Law of Contract], University of the Witwatersrand, 1983; William Arthur Ramsden, "Some Historical Aspects of Supervening Impossibility of Performance of Contract" (1975) 38 Tydskrif vir Hedendaagse Romeins-Hollandse Reg 153, 284 and 370; William Arthur Ramsden, "Temporary Supervening Impossibility of Performance" (1977) 94 South African Law Journal [https://heinonline.org/HOL/LandingPage?handle=hein.journals/soaf94&div=36&id=&page= 162]; Jacques du Plessis, "Supervening Impossibility of Performance – A Conceptual Conundrum and Restatement of Principles" (2022) 33 Stellenbosch Law Review [https://heinonline.org/HOL/LandingPage?handle=hein.journals/stelblr33&div=46&id=&page= 605][https://journals.co.za/doi/10.47348/SLR/2022/i4a2 Sabinet]; A J Kerr, "The Effect of Leases on Supervening Impossibility of Performance" (1977) 94 South African Law Journal [https://heinonline.org/HOL/LandingPage?handle=hein.journals/soaf94&div=68&id=&page= 389]; "Termination by supervening impossibility of performance", The Law of South Africa, Butterworths, 2006, [https://books.google.com/books?id=_Vc_AQAAIAAJ vol 19], para 249 at p 170; Louis F van Huyssteen and Catherine J Maxwell, Contract Law in South Africa, 2021, paras [https://books.google.com/books?id=KjMhEAAAQBAJ&pg=PA322 386] to 398; "Rendering performance impossible", Wille's Principles of South African Law, [https://books.google.com/books?id=tmQ_AQAAIAAJ 8th Ed], Juta, 1991, p 514; J T R Gibson, "Supervening Impossibility of Performance", South African Mercantile and Company Law, [https://books.google.com/books?id=c0E_AQAAIAAJ 2nd Ed], Juta & Company, 1966, p 95; A J Kerr, "Breach, Supervening Impossibility and Risk" (1978) 95 South African Law Journal [https://heinonline.org/HOL/LandingPage?handle=hein.journals/soaf95&div=11&id=&page= 16]; and Martin Brassey, "The Effect of Supervening Impossibility of Performance on a Contract of Employment" [1990] Acta Juridica [https://heinonline.org/HOL/LandingPage?handle=hein.journals/actj1990&div=7&id=&page= 22].</ref>

==United States==
At common law, for the defence of "impossibility" to be raised performance must not merely be difficult or unexpectedly costly for one party, there must be no way for it to actually be accomplished. However, in the United States it is beginning to be recognized that "impossibility" under this doctrine can also exist when the contemplated performance can be done but only at an excessive and unreasonable cost, i.e., commercial impracticability.<ref>See, e.g., {{cite court |litigants=Transatlantic Financing Corp. v. United States |vol=363 |reporter=F.2d |opinion=312 |pinpoint= |court=[[United States Court of Appeals for the District of Columbia Circuit|D.C. Cir.]] |date=1966 |url=https://law.justia.com/cases/federal/appellate-courts/F2/363/312/264117/ |accessdate=2018-07-23 |quote=}}</ref>  On the other hand, some US sources see "impossibility" and [[impracticability]] as being related but separate defences.

==See also==
* [[Impossibility defense]]
* [[Contract law]]
* ''[[Force majeure]]''
* [[Hardship clause]]
* [[Hell or high water clause]]
* [[Mutual assent]]
* ''[[Ultra posse nemo obligatur]]''

==References==
*Roy Granville McElroy. Impossibility of Performance: A Treatise on the Law of Supervening Impossibility of Performance of Contract, Failure of Consideration, and Frustration. Cambridge, at the University Press. 1941. [https://books.google.com/books?id=GgpEBgAAQBAJ&pg=PR3 Google]
*Rudolf Gottschalk. Impossibility of Performance in Contract. Stevens & Sons Ltd. London. 1938. With a supplement for the years 1938-1944. Stevens & Sons. London. 1945.
*"Impossibility and Mistake". Halsbury's Laws of England. Fifth Edition. Volume 9(1). Paragraph 888 et seq. Fourth Edition. Reissue. 1998. [https://books.google.com/books?id=eTpHAQAAIAAJ Volume 9(1)]. Chapter 7. Paragraph 888 at page 644 et seq.
*S Martin Leake. "Impossibility of Performance". A Digest of Principles of the Law of Contracts. Third Edition. Stevens and Sons. 1892. [https://books.google.com/books?id=xJt4nK6bfUIC&pg=PA590 Page 590].
*William R Anson. "Impossibility of Performance". Principles of the English Law of Contract. Sixth Edition. Oxford, at the Clarendon Press. 1891. Part 5. Chapter 4. Pages [https://books.google.com/books?id=l8opAAAAYAAJ&pg=PA317 317] to 321.
*Frederick Pollock. "Impossible Agreements". Principles of Contract. Fifth Edition. Stevens and Sons. 1889. Chapter 8. [https://books.google.com/books?id=uoUzAAAAIAAJ&pg=PA378 Page 378].
*William T Brantly. "Impossibility of Performance". Law of Contract. Second Edition. M Curlander. 1912. Chapter 4. [https://archive.org/details/cu31924018805899/page/418/mode/1up Page 418].
*John D Lawson. "Discharge by Impossibility of Performance". The Principles of the American Law of Contracts at Law and in Equity. 1893. Chapter 13. [https://books.google.com/books?id=Dj09AAAAIAAJ&pg=PA457 Page 457].
*John D Lawson. "Impossibility of Performance". Rights, Remedies and Practice. 1890. Volume 5. Chapter 119. [https://books.google.com/books?id=_QI9AAAAIAAJ&pg=PA4166 Page 4166].
*Charles Fisk Beach. "Impossible Contracts". A Treatise on the Modern Law of Contracts.1897. Volume 1. Chapter 6. [https://archive.org/details/cu31924018805824/page/269/mode/1up?q=269 Page 269].
*William Wait. "Impossible Contracts". A Treatise Upon Some of the General Principles of the Law. 1885. Volume 7. Chapter 32. [https://books.google.com/books?id=zNzDAAAAIAAJ&pg=PA124 Page 124].
*Mindy Chen-Wishart. "Physical impossibility". Contract Law. Fifth Edition. Oxford University Press. 2015. Chapter 7.3.2. [https://books.google.com/books?id=Vb66BwAAQBAJ&pg=PA295 Page 295].
*D J Joubert. "Physical Possibility of Performance". General Principles of the Law of Contract. Juta & Co Ltd. 1987. Chapter 13. Page 124. [https://books.google.com/books?id=tV4_AQAAIAAJ Google]
*Victor Goldberg. "Impossibility and Related Excuses". Framing Contract Law: An Economic Perspective. Harvard University Press. 2006. Chapter 19. [https://books.google.com/books?id=GYSiH5rHKlcC&pg=PA333 Page 333].
*John Henry Schlegel, "Of Nuts, and Ships, and Sealing Wax, Suez, and Frustrating Things - The Doctrine of Impossibility of Performance" (1968 to 1969) 23 Rutgers Law Review [https://heinonline.org/HOL/LandingPage?handle=hein.journals/rutlr23&div=24&id=&page= 419]
*John D Wladis, "Common Law and Uncommon Events: The Development of the Doctrine of Impossibility of Performance in English Contract Law" (1986 to 1987) 75 Georgetown Law Journal [https://heinonline.org/HOL/LandingPage?handle=hein.journals/glj75&div=40&id=&page= 1575]
*"The Principle of Impossibility in Contract" (1940) 56 Law Quarterly Review [https://heinonline.org/HOL/LandingPage?handle=hein.journals/lqr56&div=42&id=&page= 519]
*J Denson Smith, "Some Practical Aspects of the Doctrine of Impossibility" (1937 to 1938) 32 Illinois Law Review [https://heinonline.org/HOL/LandingPage?handle=hein.journals/illlr32&div=52&id=&page= 672]
*Christopher J Bruce, "An Economic Analysis of the Impossibility Doctrine" (1982) 11 The Journal of Legal Studies [https://heinonline.org/HOL/LandingPage?handle=hein.journals/legstud11&div=19&id=&page= 311]
*Richard A Posner and Andrew M Rosenfield, "Impossibility and Related Doctrines in Contract Law: An Economic Analysis" (1977) 6 The Journal of Legal Studies [https://heinonline.org/HOL/LandingPage?handle=hein.journals/legstud6&div=9&id=&page= 83]
*"Impossibility of Performance" (1870) 49 The Law Times [https://books.google.com/books?id=HxVQAQAAMAAJ&pg=PA300 300] (20 August 1870)
*Edwin W Patterson. "Impossibility of Performance and Frustration of Purpose". Cases and Materials on Contracts II. Foundation Press. 1935. [https://books.google.com/books?id=3hC3AAAAIAAJ Volume 1]. Chapter 3. Page 285.
*George P Costigan. "Impossibility of Performance of Contracts". Cases on the Law of Contracts. [https://books.google.com/books?id=RiO3AAAAIAAJ Second Edition]. 1932. Chapter 8. Page 700.
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[[Category:Common law]]
[[Category:Contract law]]
[[Category:Equitable defenses]]