conceiv

able that

within the serious contemplation of a reasonable man at it should the time that the thing may somehow be done. For

turn out

possible.

"Practical impossi

extreme

example, a man agrees to make a flying machine and warrants that it shall fly. This may well be a good contract. It is true that no one has yet succeeded in making such a machine. But the difficulties, great as they are, consist in details; it is a question of weight and strength of materials, disposition of parts, and application of power; and these obstacles differ not in kind from such as have already been overcome in other quarters by the progress of mechanical invention and workmanship. Suppose, again, that a man agrees to make a flying machine and fly to the moon with it. Now this involves an undertaking either to live in interplanetary space, which is absolutely impossible, or to make a habitable atmosphere between the earth and the moon, which is likewise impossible, though not precisely in the same manner. It is surely needless to put the question whether any court could regard such an agreement as valid, even though the parties were so ignorant as to believe it possible.

This last qualification-viz. that the parties must be presumed to have the ordinary knowledge of reasonable men, even if the whole thing is treated as a question of intention-is obviously required by convenience, and is contained by implication in the Indian Contract Act (s. 56, illust. a), which says that an agreement to discover treasure by magic is void. In some regions at least of British India the parties might really believe in the efficacy of magic for the purpose.

If a man may bind himself to do something which is bility," ie. only not known to be impossible, much more can he bind himself to do something which is known to be possible, cost or however expensive and troublesome. For some purposes difficulty, not practical impossibility may be treated as equivalent to absolute impossibility: a ship is said to be totally lost when it is in this sense practically impossible, though not

material.

physically impossible, to repair her (a). But this does not apply to the matter now in hand (b).

repug.

nancy

contents of

instru

In most

and does

the

The other conceivable cases of absolute impossibility Logical impossimay be very briefly dismissed. Inconsistent or, in the bility. Reusual technical phrase, repugnant promises contained in pugnant promises: the same instrument cannot of course be enforced: this however is rather a case of failure of that certainty which, between as we saw in the first chapter, is one of the primary condi- date and tions for the formation of a contract. There may also be a repugnancy as to date, as if a man promises to do a thing ment. on a day already past. Practically, however, such a cases only repugnancy can hardly be more than apparent. Either it apparent, is a mere clerical or verbal error, in which case the Court not avoid may correct it by the context (c), or it arises from the contract. terms of the agreement being fixed before and with reference to a certain time but not reduced into writing and executed as a written contract till afterwards. In such a case it must be determined on the circumstances and construction of the contract whether the stipulation as to time. is to be treated as having ceased to be part of the contract (in other words, as having been left in the statement of the contract by a common mistake), or as still capable of giving an independent right of action. At all events it cannot be treated as a condition precedent so as to prevent the rest of the contract from being enforced (d).

not ex

Leaving, however, this rather barren discussion, we Promisor come to a qualification, or rather explanation, of more cused by practical importance, which follows a fortiori from the relative im possibility, principle laid down by Willes, J. Difficulty, inconvenience, .e. not

(a) Moss v. Smith, 9 C. B. 94, 103. Mr. Leake's citation of this dictum (Digest, 682) appears to me irrelevant.

(b) See per Mellor, J. L. R. 6 Q. B. 123, per Hannen, J. ib. 127. These dicta seem to go even beyond what is said in the text, but are probably limited in their true effect to what is here called impossibility in fact.

(c) See Fitch v. Jones, 5 E. & B.

238, 24 L. J. Q. B. 293, where a
note payable two months after date,
and made in January, 1855, was
dated by mistake 1854, but across
it was written "due the 4th March,
1855." The Court held that this
sufficiently corrected the mistake,
and might be taken as a direction
to read 5 for 4.

(d) Hall v. Cazenove, 4 East 477,
where the Court agreed to this extent,
but differed on the other question.

means of

perform

ance.

One may

warrant acts of

third per

having the or impracticability arising out of circumstances merely relative to the promisor will not excuse him. "Impossibility may consist either in the nature of the action in itself, or in the particular circumstances of the promisor. It is only the first, or objective kind of impossibility that is recognized as such by law. The second, or subjective kind, cannot be relied on by the promisor for any purpose, and does not release him from the ordinary consequences of a wilful non-performance of his contract. On this last point the most obvious example is that of the debtor who owes a sum certain but has neither money nor credit. There is plenty of money in the world, and it is a matter wholly personal to the debtor if he cannot get the money he has bound himself to pay" (a). Therefore a man is not excused who chooses to make himself answerable for the acts or conduct of third persons, though beyond his control; or even, it seems, for a contingent event in itself possible and ordinary but beyond the control of man. It has been said that a covenant that it shall rain to-morrow might be good (b), and that "if a man is bound to another in 207. on condition quod pluvia debet pluere cras, there si pluvia non pluit cras the obligor shall forfeit the bond, though there was no default on his part, for he knew not that it would not rain. In like manner if a man is bound to me on condition that the Pope shall be here at Westminster to-morrow, then if the Pope comes not there is no default on the defendant's part, and yet he has forfeited the obligation" (c). "Generally if a condition is to be performed by a stranger and he refuses, the bond is forfeit, for the obligor took upon himself that the stranger should do it" (d). "If the condition be that the obligor shall ride with I. S. to Dover such a day, and I. S. does not go

sons, or natural event in itself possible.

(a) Savigny, Obl. 1. 384.

(b) By Maule, J. Canham v.. .Barry, 15 C. B. at p. 619; 24 L. J. C. P. at p. 106. Per Cur. Baily v. De Crespigny, L. R. 4 Q. B. at p. 185. But qu. would not such a contract be a mere wager in almost any conceiv

able circumstances?

(c) Per Brian, C. J., Mich. 22 Ed. 4. 26. The whole discussion there is curious, and well worth perusal in the book at large.

(d) Ro. Ab. 1. 452, L. pl. 6.

thither that day; in this case it seems the condition is broken, and that he must procure I. S. to go thither and ride with him at his peril" (a). Where the condition of a bond was to give such a release as by the Court should be thought meet, it was held to be the obligor's duty to procure the judge to devise and direct it (b). If a lessee agrees absolutely to assign his lease, the lease containing a covenant not to assign without licence, the contract is binding and he must procure the lessor's consent (c). But on the sale of shares in a company, on the Stock Exchange at all events, the vendor is not bound to procure the directors' assent, though it may be required to complete the transfer (d), and it seems at least doubtful whether he is so bound in any case (e).

ment im

Where an agreement is impossible by law there is no Agreedoubt that it is void: for example, a promise by a servant possible in to discharge a debt due to his master is void, and there- law is void. fore no consideration for a reciprocal promise (f); though, by the rule last stated, a promise to procure his master to discharge it would (in the absence of any fraudulent intention against the master) be good and binding. And when the performance of a contract becomes wholly or in part impossible by law, the contract is to that extent discharged. The best as well as the latest instance of this When peris Baily v. De Crespigny (g). There a lessor covenanted formance with the lessee that neither he nor his heirs nor his impossible by law, assigns would allow any building (with certain small exceptions) on a piece of land of the lessor's fronting the excused. demised premises. Afterwards a railway company pur- Crespigny. chased this piece of land under the compulsory powers of

(a) Shepp. Touchst. 392.

(b) Lamb's ca. 5 Co. Rep. 23 b. (c) Lloyd v. Crispe, 5 Taunt. 249; cp. Canham v. Barry, 15 C. B. 597. (d) Stray v. Russell, Q. B. and Ex. Ch. 1 E. & E. 888, 916, 28 L. J. Q. B. 279, 29 L. J. Q. B. 115.

(e) Lindley, 1. 703, 712, 'not allow.

ing Wilkinson v. Lloyd, 7 Q. B. 27, to
be now law.

(f) Harvey v. Gibbons, 2 Lev. 161.
It is called an illegal consideration,
but such verbal confusions are con
stant in the early reports.

(g) L. R. 4 Q. B. 180.

becomes

promisor is

Baily v. De

Buying one's own property.

an Act of Parliament, and built a station upon it. The lessee sued the lessor upon his covenant; but the Court held that he was discharged by the subsequent Act of Parliament, which put it out of his power to perform it. And this was agreeable to the true intention, for the railway company coming in under compulsory powers, "whom he [the covenantor] could not bind by any stipulation, as he could an assignee chosen by himself," was "a new kind of assign, such as was not in the contemplation of the parties when the contract was entered into." Nor was it material that the company was only empowered by Parliament, not required, to build a station at that particular place (a). If a subsequent Act of Parliament making the performance of a contract impossible were a private Act obtained by the contracting party himself, he might perhaps remain bound by his contract as if he had made the performance impossible by his own act (of which afterwards): but where the Act is a public one, its effect in discharging the contract cannot be altered by showing that it was passed at the instance of the party originally bound (b).

The case of a man agreeing to buy that which is already his own is a peculiar one. Here the performance is impossible in law; and the agreement may be regarded as void not only for impossibility but for want of consideration. But this class of cases is by its nature strictly limited. No man will knowingly pay for what belongs to him already. If on the other hand the parties are in doubt or at variance as to what their rights are, any settlement which they come to in good faith, whatever its form, has the character of a compromise. There remain only the cases in which the parties act under a common mistake as to their respective rights. The presence of the mistaken assumption is the central point on which the

(a) L. R. 4 Q. B. 186-7.

(b) Brown v. Mayor of London, 9 C. B. N. S. 726, 30 L. J. C. P. 225,

in Ex. Ch. 13 C. B. N. S. 828, 31 L. J. C. P. 280.