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not avoid

it by the context (a), or it arises from the terms of the agreement and does being fixed before and with reference to a certain time but not the reduced into writing and executed as a written contract till contract. 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 (b).

j

i.e. not

means of

Leaving, however, this rather barren discussion, we come to Promisor a qualification, or rather explanation, of more practical import- not excused by ance, which follows a fortiori from the principle laid down by relative im Willes, J. Difficulty, inconvenience, or impracticability arising possibility, out of circumstances merely relative to the promisor will not having the excuse him. "A person incurring a debt may be, or may perforbecome, unable to pay it for want of money: but he is not on mance. that account excused from his contract" (c). Savigny states the civil law to the same effect. "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" (d). Therefore a man is not excused who chooses to make himself answerable for the acts or conduct of

(a) 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.

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

(c) Leake 369.

(d) Sav. Obl. 1. 384.

L

One may warrant acts of third

natural

event in

itself possible.

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 persons, or rain to-morrow might be good (a), 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" (b). "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" (c). "If the condition be that the obligor shall ride with I. S. to Dover such a day, and I. S. does not go 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" (d). 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 (e). 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 (f). 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 (g), and it seems at least doubtful whether he is so bound in any case (1).

Agree

ment im

But on the sale of

Where an agreement is impossible by law there is no doubt that it is void for example, a promise by a servant to discharge ¡ law is void. a debt due to his master is void, and therefore no consideration

possible in

(a) By Maule, J. Canhum v. Barry,
15 C. B. at p. 619, 24 L. J. C. P. at
p. 106.
Per Cur. Baily v. Dc Cres-
pigny, 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?

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

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

(d) Shepp Touchst. 392.

(e) Lamb's ca. 5 Co. Rep. 23 b.

(f) Lloyd v. Crispe, 5 Taunt. 249, ep. Canham v. Barry, 15 C. B. 597, and see other cases in Leake, 370.

(g) 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.

(h) Lindley, 1. 732, not allowing Wilkinson v. Lloyd, 7 Q. B. 27, to be now law.

formance becomes

by law, promisor is

Baily r. De

for a reciprocal promise ("); 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 When perthis is Baily v. De Crespigny (b). There a lessor covenanted with the lessee that neither he nor his heirs nor his assigns would impossible allow any building (with certain small exceptions) on a piece of land of the lessor's fronting the demised premises. Afterwards excused. a railway company purchased this piece of land under the com- Crespigny. pulsory powers of 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 (c). 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 (d).

of same

principles

The principles we have just now considered are very well Exposition brought together in the Digest, in a passage from a work of Venuleius on Stipulations. "Illud inspiciendum est, an qui in Roman centum dari promisit confestim teneatur, an vero cesset obligatio donec pecuniam conferre posset. Quid ergo si neque domi habet

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

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

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

(d) 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.

law.

2. Per

impossible

excuse

where

absolute.

neque inveniat creditorem? Sed haec recedunt ab impedimento
naturali et respiciunt ad facultatem dandi (a). . . . Et generaliter
causa difficultatis ad incommodum promissoris, non ad impedi-
mentum stipulatoris pertinet [ie. inconvenience short of im-
possibility is no answer]. . . . Si ab eo stipulatus sim, qui
efficere non possit, cum alii possibile sit, iure factum obligationem
Sabinus scribit." He goes on to say that a legal impossibility,
e.g. the sale of a public building, is equivalent to a natural im-
possibility.
"Nec ad rem pertinet quod ius mutari
potest et id quod nunc impossibile est postea possibile fieri;
non enim secundum futuri temporis ius sed secundum praesentis
aestimari debet stipulatio" (b): (as if it should be contended that
a covenant to create a new manor is not a covenant for a legal
impossibility, because peradventure the statute of Quia Emptores
may be repealed.) All this is in exact accordance with English

law.

2. We now come to the cases where the performance of an formance agreement is not impossible in its own nature, but impossible in in fact: no fact by reason of the particular circumstances. It is a rule admitted by all the authorities, and supported by positive contract is decisions, that impossibility of this kind is no excuse for the failure to perform an unconditional contract, whether it exists at the date of the contract, or arises from events which happen afterwards (). Thus an absolute contract to load a full cargo of guano at a certain island was not discharged by there not being enough guano there to make a cargo (d): and where a charter-party required a ship to be loaded with usual despatch, it was held to be no answer to an action for delay in loading that a frost had stopped the navigation of the canal by which the cargo would have been brought to the ship in the ordinary course (). Still less will unexpected difficulty or inconvenience short of impossibility serve as an excuse. Where insured premises were damaged by fire and the insurance company, having an option to pay in money or reinstate the building,

A fortiori where only in

convenient

or impracticable.

(a) For the explanation of a not
very clear illustration which follows
here, and is omitted in our text,
see Sav. Obl. 1. 385.

(b) D. 45. 1. de v. o. 137. §§ 4-6.
(c) Atkinson v. Ritchie, 10East 530.

(d) Hills v. Sughrue, 15 M. & W. 253. But qu. if this case would now be so decided.

(e) Kearon v. Pearson, 7 H. & N. 386, 31 L. J. Ex. 1.

elected to reinstate, but before they had done so the whole was pulled down by the authority of the Commissioners of Sewers as being in a dangerous condition; it was held that the company were bound by their election, and the performance of the contract as they had elected to perform it was not excused (@)., So again if a man contracts to do work according to orders or specifications given or to be given by the other contracting party, he is bound by his contract, although it may turn out not to be practicable to do the work in the time or manner prescribed. In Jones v. St. John's College (Oxford) (b) the plaintiffs contracted to erect certain farm buildings according to plans and specifications furnished to them, together with any alterations or additions within specific limits which the defendants might prescribe, and subject to penalties if the work were not finished. within a certain time. And they expressly agreed that alterations and additions were to be completed on the same conditions and in the same time as the works under the original contract, unless an extension of time were specially allowed. It was held that the plaintiffs, having contracted in such terms, could not avoid the penalties for non-completion by showing that the delay arose from alterations being ordered by the defendants which were so mixed up with the original work that it became impossible to complete the whole within the specified time. In Thorn v. Mayor of London (c) a contractor undertook to execute works according to specifications prepared by the engineer of the corporation. It turned out that an important part of the works could not be executed in the manner therein described, and after fruitless attempts in which the plaintiff incurred much expense, that part had to be executed in a different way. It was held that no warranty could be implied on the part of the corporation that the plans were such as to make the work in fact reasonably practicable, and that the plaintiff could not recover the value of the work that had been thrown away. short, it is admitted law that generally where there is a positive contract to do a thing not in itself unlawful, the contractor must perform it, or pay damages for not doing it, although in

(a) Brown v. Royal Insurance Co. 1 E. & E. 853, 28 L. J. Q. B. 275, diss. Erle, J. who thought such a reinstatement as was contemplated by the contract (not being an entire

In

rebuilding) had become impossible by the act of the law.

(b) L. R. 6 Q. B. 115, 124. (c) L. R. 9 Ex. 163, in Ex. Ch. 10 Ex. 112.

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