2. Performance impossible excuse where ... neque inveniat creditorem? Sed haec recedunt ab impedimento 2. We now come to the cases where the performance of an 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 absolute. 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 (4): 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 A fortiori course (e). Still less will unexpected difficulty or inconvenience only in- short of impossibility serve as an excuse. Where insured convenient premises were damaged by fire and the insurance company, having an option to pay in money or reinstate the building, where or impracticable. (a) For the explanation of a not (b) D. 45. 1. de v. o. 137. §§ 4-6. (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 (a). 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 plaintiff's 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. In 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 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. in fact. consequence of unforeseen accidents the performance of his contract has become unexpectedly burdensome or even impossible (a). Prohibi- Where the performance of a contract becomes impracticable tion by by reason of its being forbidden by a foreign law, it is deemed foreign lawim to have become impossible not in law but in fact. In Barker v. possibility Hodgson (b) intercourse with the port to which a ship was chartered was prohibited on account of an epidemic prevailing there, so that the freighter was prevented from furnishing a cargo; but it was held that this did not dissolve his obligation. So if the goods are confiscated at a foreign port, that is no answer to an action against the shipowner for not delivering them (c). Obligation mises ac No im here: Certain cases, of which Paradine v. Jane (d) is the leading of tenant one, are often referred to upon this head. The effect of them to pay rent though de- is that the accidental destruction of a leasehold building, or the mised pre- tenant's occupation being otherwise interrupted by inevitable cidentally accident, does not determine or suspend the obligation to pay destroyed. rent either at law or in equity (e). In these cases, however, the possibility performance of the contract does not really become impossible. There is obviously nothing impossible in the relation of landlord and tenant continuing with its regular incidents. We must be careful not to lose sight of the two distinct characters of a lease as a contract (or assemblage of contracts) and as a conveyance. There is a common misfortune depriving both parties to some extent of the benefit of their respective interests in the property; not of the benefit of the contract, for so far as it is a matter of contract, neither party is in a legal sense disabled from performing any material part of it. The expense of getting housed elsewhere, or the loss of profits from a business carried on upon the premises, may render it difficult or even impracticable for the tenant to go on paying rent. But this is a personal and relative" causa difficultatis "; which, as we have seen, is irrelevant in (a) Taylor v. Caldwell, 3 B. & S. (c) Spence v. Chodwick, 10 Q. B. (d) Aleyn 26. (e) Leeds v. Cheetham, 1 Sim. 146, Lofft v. Dennis, 1 E. & E. 474, 28 L. J. Q. B. 168. similar contract uncon a legal point of view. The lessee's special covenants, if such there be, to paint the walls, &c., at stated times or the like, do become impossible of performance by the destruction of their subjectmatter, and to that extent, no doubt, are discharged or suspended as being within the rule in Taylor v. Caldwell, which we shall immediately consider. Only to this limited extent is there any precise resemblance to the wider class of cases where the performance of a contract becomes in fact impossible. The true analogy is in the but a nature of the question which the rule of law has to decide : question, namely whether the contract is in substance and effect as well viz. whether the as in terms unconditional and without any implied exception of inevitable accident. We shall see that this is always the real is really question. The answer being here determined by Paradine v. ditional. Jane (a), it was held in the later cases (b) (about which difficulties are sometimes felt, but it is submitted without solid reason) that it is not affected by the landlord having protected himself by an insurance, which is a purely collateral contract of indemnity. There might indeed very well be a further collateral agreement between the landlord and tenant that the landlord should apply the insurance moneys to rebuilding the premises. Such an agreement would be good without any new consideration on the tenant's part beyond his acceptance of the lease, and probably without being put into writing (c). On the other hand it is often a term of the lease that the tenant shall keep the premises insured and that in case of fire the insurance moneys shall be applied in reinstatement. There, if the landlord has insured separately without the knowledge of the tenant, so that the damage is apportioned between the two policies, and the amount received by the tenant is diminished, the tenant is entitled to the benefit of the other policy also (d). civil law. The rule or presumption might, of course, be the other way, Contra the as it is by the civil law, where it is an incident of the contract to pay rent that it is suspended by inevitable accident destroying (a) Aleyn 26. (b) Leeds v. Cheetham, 1 Sim. 146, Lofft v. Dennis, 1 E. & E. 474, 28 L. J. Q. B. 168. (c) Parol collateral agreements have been held good in Erskine v. Adeane, 8 Ch. 756, Morgan v. (d) Reynard v. Arnold, 10 Ch. 386. Exceptions or making useless the thing demised. The particular event on which Paradine v. Jane was decided, eviction by alien enemies (a), is expressly dealt with in this manner. The law of Scotland follows the civil law (b). Either way the rule is subject to any special agreement of the parties, and it is but a question which, in the absence of such agreement, is the better distribution of the hardship that must to some extent fall upon both. It is hard for a tenant, according to the English rule, to pay an occupation rent for a burnt out plot of ground. It is hard for a landlord, according to the Roman and Scottish rule, to lose the rent as well as (it may be) a material part of the value of the reversion. Either party may be insured; but that, as we have said, is not of itself relevant as between them, So far the general rule. The nature of the exceptions is in certain thus set forth by the judgment of the Court in Baily v. De Crespigny: cases of subse. quent impossibility. "There can be no doubt that a man may by an absolute contract bind himself to perform things which subsequently become impossible or to pay damages for the non-performance, and this construction is to be put upon an unqualified undertaking, where the event which causes the impossibility was or might have been anticipated and guarded against in the contract, or where the impossibility arises from the act or default of the promisor. But where the event is of such a character that it cannot reasonably be supposed to have been in the contemplation of the contracting parties when the contract was made, they will not be held bound by general words which, though large enough to include, were not used with reference to the possibility of the particular contingency which afterwards happens. It is on this principle that the act of God is in some cases said to excuse the breach of a contract. This is in fact an inaccurate expression, because, where it is an answer to a complaint of an alleged breach of contract that the thing done or left undone was so by the act of God, what is meant is that it was not within the contract" (c). |