The doctrine of impossibility or impossibility of performance or impossibility of performance of contract is a
doctrine
Doctrine (from , meaning 'teaching, instruction') is a codification (law), codification of beliefs or a body of teacher, teachings or instructions, taught principles or positions, as the essence of teachings in a given branch of knowledge or in a ...
in
contract law
A contract is an agreement that specifies certain legally enforceable rights and obligations pertaining to two or more Party (law), parties. A contract typically involves consent to transfer of goods, Service (economics), services, money, or pr ...
.
In
contract law
A contract is an agreement that specifies certain legally enforceable rights and obligations pertaining to two or more Party (law), parties. A contract typically involves consent to transfer of goods, Service (economics), services, money, or pr ...
, impossibility is an excuse for the nonperformance of duties under a
contract
A contract is an agreement that specifies certain legally enforceable rights and obligations pertaining to two or more parties. A contract typically involves consent to transfer of goods, services, money, or promise to transfer any of thos ...
, 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
Restitution and unjust enrichment is the field of law relating to gains-based recovery. In contrast with damages (the law of compensation), restitution is a claim or remedy requiring a defendant to give up benefits wrongfully obtained. Liability ...
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
impossible
Impossible, Imposible or Impossibles may refer to:
Music
* ''ImPossible'' (album), a 2016 album by Divinity Roxx
* ''The Impossible'' (album), a 1981 album by Ken Lockie
Groups
* The Impossibles (American band), a 1990s indie-ska group from Au ...
to perform a contract as a result of
war
War is an armed conflict between the armed forces of states, or between governmental forces and armed groups that are organized under a certain command structure and have the capacity to sustain military operations, or between such organi ...
.
Australia
Frustration usually involves impossibility of performance. As to whether the non-existence of the subject matter of a contract constitutes (initial) impossibility of performance, see
McRae v Commonwealth Disposals Commission
''McRae v Commonwealth Disposals Commission'',. is an Australian contract law case, relevant for English contract law, concerning the common mistake about the possibility of performing an agreement.
Facts
The Commonwealth Disposals Commiss ...
. Cf.
Res extincta.
England and Wales
A contract may be frustrated by impossibility of performance.
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.
The
English case that established the doctrine of impossibility at
common law
Common law (also known as judicial precedent, judge-made law, or case law) is the body of law primarily developed through judicial decisions rather than statutes. Although common law may incorporate certain statutes, it is largely based on prece ...
is ''
Taylor v Caldwell
''Taylor v Caldwell'' is a landmark English contract law case, with an opinion delivered by Mr Justice Blackburn which established the doctrine of common law impossibility.
Facts
Caldwell & Bishop owned Surrey Gardens & Music Hall, and agre ...
.''
New Zealand
Wilkins and Davies Construction Co Ltd v Geraldine Corporation
958
Year 958 (Roman numerals, CMLVIII) was a common year starting on Friday of the Julian calendar.
Events
By place
Byzantine Empire
* October / November – Battle of Raban: The Byzantine Empire, Byzantines under John I Tzimiskes, Jo ...
NZLR 985 is relevant.
South Africa
A contract may be ended by supervening impossibility of performance.
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.
[See, e.g., ] On the other hand, some US sources see "impossibility" and
impracticability as being related but separate defences.
See also
*
Impossibility defense
An impossibility defense is a criminal defense occasionally used when a defendant is accused of a criminal attempt that failed only because the crime was factually or legally impossible to commit.
Factual impossibility is rarely an adequat ...
*
Contract law
A contract is an agreement that specifies certain legally enforceable rights and obligations pertaining to two or more Party (law), parties. A contract typically involves consent to transfer of goods, Service (economics), services, money, or pr ...
* ''
Force majeure
In contract law, force majeure ( ; ) is a common clause in contracts which essentially frees both parties from liability or obligation when an extraordinary event or circumstance beyond the control of the parties, such as a war, strike, riot, ...
''
*
Hardship clause
Hardship clause is a clause in a contract that is intended to cover cases in which unforeseen events occur that fundamentally alter the equilibrium of a contract resulting in an excessive burden being placed on one of the parties involved.
Hardsh ...
*
Hell or high water clause
*
Mutual assent
Meeting of the minds (also referred to as mutual agreement, mutual assent, or ''consensus ad idem'') is a phrase in contract law used to describe the intentions of the parties forming the contract. In particular, it refers to the situation where ...
* ''
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
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
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
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. Page
317to 321.
*Frederick Pollock. "Impossible Agreements". Principles of Contract. Fifth Edition. Stevens and Sons. 1889. Chapter 8
Page 378
*William T Brantly. "Impossibility of Performance". Law of Contract. Second Edition. M Curlander. 1912. Chapter 4
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
Page 457
*John D Lawson. "Impossibility of Performance". Rights, Remedies and Practice. 1890. Volume 5. Chapter 119
Page 4166
*Charles Fisk Beach. "Impossible Contracts". A Treatise on the Modern Law of Contracts.1897. Volume 1. Chapter 6
Page 269
*William Wait. "Impossible Contracts". A Treatise Upon Some of the General Principles of the Law. 1885. Volume 7. Chapter 32
Page 124
*Mindy Chen-Wishart. "Physical impossibility". Contract Law. Fifth Edition. Oxford University Press. 2015. Chapter 7.3.2
Page 295
*D J Joubert. "Physical Possibility of Performance". General Principles of the Law of Contract. Juta & Co Ltd. 1987. Chapter 13. Page 124
Google*Victor Goldberg. "Impossibility and Related Excuses". Framing Contract Law: An Economic Perspective. Harvard University Press. 2006. Chapter 19
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 Revie
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 Journa
1575*"The Principle of Impossibility in Contract" (1940) 56 Law Quarterly Revie
519*J Denson Smith, "Some Practical Aspects of the Doctrine of Impossibility" (1937 to 1938) 32 Illinois Law Revie
672*Christopher J Bruce, "An Economic Analysis of the Impossibility Doctrine" (1982) 11 The Journal of Legal Studie
311*Richard A Posner and Andrew M Rosenfield, "Impossibility and Related Doctrines in Contract Law: An Economic Analysis" (1977) 6 The Journal of Legal Studie
83*"Impossibility of Performance" (1870) 49 The Law Time
300(20 August 1870)
*Edwin W Patterson. "Impossibility of Performance and Frustration of Purpose". Cases and Materials on Contracts II. Foundation Press. 1935
Volume 1 Chapter 3. Page 285.
*George P Costigan. "Impossibility of Performance of Contracts". Cases on the Law of Contracts
Second Edition 1932. Chapter 8. Page 700.
{{Authority control
Common law
Contract law
Equitable defenses