The Law of Contract: Study Unit 7
Private Law 372: 2021
Table of Contents
7 POSSIBILITY OF PERFORMANCE......................................................................................2
7.1 GENERAL RULE.................................................................................................................................... 2
7.2 DISTINCTIONS..................................................................................................................................... 3
7.3 MEANING OF IMPOSSIBILITY.................................................................................................................... 4
7.4 CONSEQUENCES OF IMPOSSIBILITY........................................................................................................... 7
7.5 PARTIAL IMPOSSIBILITY.......................................................................................................................... 8
7.6 TEMPORARY IMPOSSIBILITY..................................................................................................................... 8
1
, 7 POSSIBILITY OF PERFORMANCE
7.1 General rule
Impossibilium nulla obligatio est = one cannot be obliged to do the impossible
o You cannot create a contractual obligation to do something which is impossible.
Justification for rule:
o Argument is that if you say that somebody ought to do something, then by
logical implication it means that that person can do it 'ought’ implies ‘can'
o Counterpoint:
o What is a possible logical flaw to this?
It seems obvious that one cannot be obliged to perform something which
is impossible, but does that necessarily mean that there should be no
obligations? That there cannot be a contract at all? Is all that you can get
out of a contract, a duty to perform? Or could contracts also have other
consequences? What other consequences could there be? A claim for
damages.
The point is that in some legal systems, they say impossibility doesn’t
make the contract void, you cannot be forced to perform but you might be
forced to pay damages.
In our system, if for example, you don’t deliver a painting because it was
destroyed in a fire at the gallery, then we would say that there is no
contract. But in other systems they would say you might have to pay
damages. But we have not yet adopted that approach.
Distinguish between the possibility requirement & the following other requirements
that might be relevant
o No consensus (done above in unit 2 &3)
Could have situations where the issue isn’t really possibility of
performance but is a lack of consensus – lack of animus contrahendi.
Parties could agree on something which is impossible to perform but in
doing so, they made a joke of it & didn’t seriously intend to create
obligations. Then the issue is with the absence of any intentions to create
binding obligations (lack of consensus). Or there could be an issue of
common mistake – there could be an assumption about a certain state of
affairs & if that state of affairs doesn’t actually exist then the contract
could fail on that basis due to a common mistake.
o No capacity (done above in unit 5)
Could be 2 parties that lack mental capacity & they end up concluding
some sort of agreement which cannot be performed in any event, but the
problem ultimately is their mental capabilities are as such that they
cannot in any event, contract.
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