pelled to perform it or may be restrained (a) from performing it. (We may say if we like that B. is deemed to warrant that he can lawfully perform his contract.) The contract is voidable at A.'s option on the ground of fraud, if B. has falsely stated or actively concealed the facts, but not otherwise (b). If A. does know it, the agreement is void. 7. A. makes an agreement with B. who intends by means of the agreement or of something to be obtained or done under it to effect an unlawful or immoral purpose. If A. does not know of this purpose, there is a contract voidable at his option when he discovers it. If he does know of it, the agreement is void. unlawful The provisions of the Indian Contract Act on the sub- I. C. A. on jects comprised in this chapter will be found in the Appendix (c). (a) Jones v. North, 19 Eq. 426. (b) Beachy v. Brown, E. B. & E. 796, 29 L. J. Q. B. 105; but one can never be quite safe in drawing any general conclusion from a decision on the contract to marry. agreements. 366 Performance of agreement may be impossible or physi CHAPTER VII. IMPOSSIBLE AGREEMENTS. AN agreement may be impossible of performance at the time when it is made, and this in various ways. It may be impossible in itself; that is, the agreement in itself itself may involve a contradiction, as if it contains (logically promises inconsistent with one another or with the date of the agreement. Or the thing contracted for may be contrary to the course of nature, "quod natura fieri non concedit" (a). cally). As if a man should undertake to make a river run up hill; to make two spheres of the same substance, but one twice the size of the other, of which the greater should fall twice as fast as the smaller when they were both dropped from a height; or to construct a perpetual motion (b). It may be impossible by law, as being inconsistent with some legal principle or institution. As in the cases already considered in Chap. V. of attempts to enable a stranger to a contract to sue upon it by agreement of the parties; or as if a man should give a bond to secure a simple contract with a collateral agreement that the simple contract debt should not be merged (c), or should covenant to create a new manor. (a) D. 45. 1. de v. o. 35 pr. (b) Of these particular impossibilities the second was supposed to be an elementary fact before Galileo made the experiment; the last continues to be now and then attempted by persons who know mechanical handicraft without mechanical principles: we choose the examples as all the more instructive on that account. (c) See Owen v. Homan, 3 Mac. & G. 378, 407-411. Again, it is the general rule of law that a man may contract for the sale of a specific thing which is not his own at the time. But if the thing be already the buyer's own, or cannot be the subject of private ownership at all (as the site of a public building, the Crown jewels, a ship in the Royal Navy) (a), the agreement is impossible in law. ticular state of It may be impossible in fact by reason of the existence In fact (inconof a particular state of things which makes the perform- sistent ance of the particular contract impossible. As where the with parcontract is to go to a certain island and there load a full cargo of guano, but there is not enough guano there to facts existmake a cargo (b): or a lessee covenants to dig not less than time). 1,000 tons of a certain kind of clay on the land demised in every year of the term, but there is no such clay on the land (c). ing at the become in fact. authorities construc Moreover the performance of a contract which was Or may possible in its inception may become impossible in either impossible the second or third of these ways. The authorities are in in law or a somewhat fluctuating condition, and perhaps not wholly According consistent. But the strong and concurrent tendency of the to modern later cases is to avoid laying down absolute rules, and to the rules give effect as far as possible to the real intention of the are rules of parties in other words, to treat the subject as one to be tion. governed by rules of construction rather than by rules of law. And by this means they have done much to clear up and simplify the matter for practical purposes, though a formally accurate statement of the law may be difficult to extract from them. Before proceeding to any details we may at once give an outline of the results. 1. An agreement is void if the performance of it is General either impossible in itself or impossible by law. When the performance of an agreement becomes impossible by law, the agreement becomes void. (a) In Roman law "quorum commercium non sit, ut publica quae non in pecunia populi sed in publico usu habeantur, ut est Campus Martius." D. 18. 1. de cont. empt. 6 pr. (b) Hills v. Sughrue, 15 M. & W. 253. (c) Clifford v. Watts, L. R. 5 C. P. 577. statement. 1. Agree ment im itself is void: but rule of con an im 2. An agreement is not void merely by reason of the performance being impossible in fact, nor does it become void by the performance becoming impossible in fact without the default of either party, unless according to the true intention of the parties the agreement was conditional on the performance of it being or continuing possible in fact. Such an intention is presumed where the performance of the contract depends on the existence of a specific thing, or on the life or health of a party who undertakes personal services by the contract. 3. If the performance of any promise becomes impossible in fact by the default of the promisee, the promisor is discharged, and the promisee is liable to him under the contract for any loss thereby resulting to him. If it becomes impossible by the default of the promisor, the promisor is liable under the contract for the nonperformance. 1. On the first and simplest rule-that an agreement possible in impossible in itself is void-there is little or no direct authority, for the plain reason that such agreements do not even this is occur in practice; but it is always assumed to be so. probably a Perhaps even this rule is not accurately stated as an struction: absolute one. There is reason to think the ground of it is possibility, this, that the impossible nature of the promise shows that which the there was no real intention of contracting and therefore parties as reasonable no real agreement. It would thus be reduced to a rule of construction or presumption only, though a strong one. presumed Brett, J. said in Clifford v. Watts (a): "I think it is not excluding competent to a defendant to say that there is no binding contract, merely because he has engaged to do something men must be to know, animus contrahendi. I think it will be found in been said, that the thing which is physically impossible. (a) L. R. 5 C. P. p. 588. have so contracted." The same view is also distinctly given in the Digest (a). It seems to follow then that the question is not whether a thing is absolutely impossible (a question not always without difficulty), but whether it is such that reasonable men in the position of the parties. must treat it as impossible. not im not known On the other hand a thing is not to be deemed impos- A thing is sible merely because it has never yet been done, or is not possible known to be possible. "Cases may be conceived," says because Willes, J. in the case last cited, "in which a man may to be undertake to do that which turns out to be impossible, possible: and yet he may still be bound by his agreement. I am not prepared to say that there may not be cases in which a man may have contracted to do something which in the present state of scientific knowledge may be utterly impossible, and yet he may have so contracted as to warrant the possibility of its performance by means of some new discovery, or be liable in damages for the non-performance, and cannot set up by way of defence that the thing was impossible." Indeed many things have become possible which were long supposed to be impossible; and this not only in the well-known instances of mechanical invention and the applications of scientific discovery to the arts of life, but in the regions of pure science and mathematics (b). Fifty years ago it seemed impossible that we should ever have direct evidence of the physical constitution of the sun and fixed stars: we now have much. It is submitted, nevertheless, that the doctrine of the at least if foregoing dicta must be limited to cases where it may be reasonably it be |