forfeit the patent, it was held that he was not bound absolutely to CHAP. II. pay the money, but might alternatively forfeit the patent (†).— But in the case of a promise strictly alternative between two independent matters, if the promiser neither elects or performs either, the amount recoverable as damages is measured by the alternative which is least beneficial to the promisee (u). (t) Tielens v. Hooper, 5 Ex. 833; 20 L. J. Ex. 78. (u) Bovill, C. J., Deverill v. Burnell, supra; see post, Pt. V., Chap. I., Sect. I. CHAPTER III. IMPOSSIBILITY OF PERFORMANCE. Impossibility in fact-impossibility relative to promiser—impossi- Impossibility at the time of contracting:-known to the parties- Impossibility subsequent to contracting-covenants to repair-to Implied exceptions to carrier's liability-carriers of passengers. Impossibility caused by promisee-by promiser PAGE 479 481 484 489 492 496 Impossibility caused by law-by acts of State-by acts of foreign 497 Impossibility of one of alternative promises-alternative subse- 503 PART III. THE promise expressed in the terms of the agreement may be Impossibility impossible of performance, and questions then arise as to the nature of perform- and effect of the impossibility. The impossibility may be absolute, ance. that is, inherent in the nature of the matter promised; or it may exist only relatively to the ability and circumstances of the promiser. The performance may be impossible as a matter of fact; or it may be impossible only by the rules of law. The impossibility may exist at the time of contracting, either with or without the knowledge of the parties; or it may arise subsequently to the making of the contract, and in the latter case it may be caused by events beyond the control of the parties, or it may be caused by some act of the promiser or of the promisee. The impossibility may affect the promise, or the consideration for the promise. These variations in the nature and incidence of the impossibility produce cor- CHAP. III. responding modifications in its effect, which have been the subject of judicial consideration. in fact. A promise is impossible in fact which is contrary to the law of Impossibility nature; and a practical impossibility, or impossibility relative to existing circumstances, is equivalent for most purposes to impossibility in fact (a). "In matters of business a thing is said to be impossible when it is not practicable; and a thing is impracticable when it can only be done at an excessive or unreasonable cost"; thus if a ship sustains such extensive damage that when repaired it will not be worth the sum spent upon it, "the repairs are, practically speaking, impossible, and it is a case of total loss" (b). Whether a promise is reasonable or not, provided it be reasonably certain and practicable, is immaterial. "When a person enters into a contract, he is bound to perform it, whether reasonable or not. An obligation imposed by law is necessarily both reasonable and practicable; but a person may undertake by agreement to do any particular act, and, if it is not reasonable, it is his own fault for entering into such a contract" (c).—But a promise must be Uncertainty reasonably certain; and if the parties have expressed the matter of of terms. their agreement in such uncertain or imperfect terms that it is impossible to ascertain any definite meaning, the agreement is necessarily void; for "in every deed there must be such a degree of moral certainty as to leave in the mind of a reasonable man no doubt of the intent of the parties" (d). In considering the sufficiency of a description the maxim" id certum est quod certum reddi potest" may be applied, and vague expressions be made sufficiently certain (e).-Impossibility relative to the ability of the promiser is Impossibility immaterial to the validity of a contract; as in the case of a person contracting debts which he is or becomes unable to pay for want of money (f); or contracting for the happening of events over which he has no control, as a contract to insure his life, and becoming (b) Maule, J., Moss v. Smith, 9 C. B. 103; 19 L. J. C. P. 225. (c) Rolfe, B., Vyse v. Wakefield, 6 M. & W. 456; affirmed, 7 M. & W. 126; 9 L. J. Ex. 274; Schillizzi v. Derry, 4 El. & B. 873; 24 L. J. Q. B. 193; Taylor v. Caldwell, 3 B. & S. 826; 32 L. J. Q. B. 164. (d) Tenterden, C. J., Coles v. Hulme, 8 B. & C. 573. See Guthing v. Lynn, (e) See Wohlenberg v. Lageman, 6 (ƒ) Holt, C. J., Thornbɔrow v. Whit acre, supra. relative to promiser. PART III. unable to insure owing to failing health (g).-So a person may promise for the acts of a third party, and he will be liable in damages, though he cannot compel the performance; as in the case of a contract to procure a third party to execute a release (h). The incumbent of a living in giving a resignation bond impliedly undertakes that the bishop will accept his resignation, and the bond is forfeited if the bishop refuses his consent (i). Impossibility in law. Impossibility by act of God. Events excepted. A promise may be impossible in law, in that it may import to have or produce a legal effect or operation which the law does not admit of. Impossibility of this kind differs from illegality in that it relates only to the legal effect which the act purports to have, and not to the question whether an act possible in itself is allowed or forbidden by law (k). Impossibility of performance caused "by the act of God" is sometimes treated as a special kind of impossibility affecting the obligation of contracts (). It is a compendious phrase including such accidents as death, tempest, and the like, which though referable to natural causes, are beyond the control and calculation of the parties; and it is commonly used for the purpose of excepting such accidents from the contract. "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" (m). And it is a rule of law that in all cases of duty or liability imposed by common law there is an implied exception of "the act of God;" but that contracts are to be construed according to their terms, without any such implied exception (). The events excepted as being acts of God include all natural accidents, which it is practically impossible to foresee or guard against; as an extraordinary storm (0). "No doubt a shower is the act of God as much as a storm; so is an earthquake in this country; yet everyone understands that a storm, super (g) Re Arthur's Estate, 14 C. D. 603; 49 L. J. C. 556. (h) Doughty v. Neal, 1 Wms. Saund. 230. (i) Grey v. Hesketh, Ambler, 268. See Fletcher v. Sondes, 1 Bli. N. S. 144; 4 E. R. 826. (k) See post, pp. 481, 497. (1) Nugent v. Smith, 1 C. P. D. 423; 45 L. J. C. P. 697. (m) Per cur. Baily v. De Crespigny, L. R. 4 Q. B. 185; 38 L. J. Q. B. 102. (n) Per cur. Nichols v. Marsland, 2 Ex. D. 4; 46 L. J. Ex. 178; Re Arthur's Estate, 14 C. D. 603; 49 L. J. C. 556. (0) Per cur. Nugent v. Smith, 1 C. P. D. 423; 45 L. J. C. P. 697; River Wear Commrs. v. Adamson, 2 Ap. Ca. 743; 47 L. J. Q. B. 193; Fobbing v. Reg., 11 Ap. Ca. 449; 56 L. J. M. C. 1. natural in one sense, may properly, like an earthquake in this CHAP. III. country, be called an act of God, or vis major. No doubt not the act of God or a vis major in the sense that it was physically impossible to resist it, but in the sense that it was practically impossible to do so" (p). So a frost of extraordinary severity (2), an extraordinary fall of snow (), an extraordinary rainfall (s), and an extraordinary high tide (t), which could not reasonably be foreseen and guarded against, are exceptional events of the above kind. fog is an ordinary peril of navigation and not such an exceptional event (u). And fire is also considered as an ordinary preventible accident (r). A Where a promise is impossible in fact at the time of making the Impossibility agreement, the construction depends, in great measure, upon at time of contractingwhether such impossibility is then known or not known to the known to the parties. Where the impossibility is known to the parties at the parties. time of making the agreement, it seems obvious that there can be no intention of performing it on the one side, and no expectation of performance on the other, and therefore the essentials of a valid promise are wanting. The impossible act cannot reasonably be supposed to be the subject of a promise or of the consideration for a promise (y). A covenant in a charter-party executed on the 15th March, that the ship should sail on or before the 12th of February, was held to be wholly nugatory, and therefore no part of the contract (). By the common law, if the condition of a bond is manifestly impossible in fact at the time of making it, as "to go from Westminster to Rome within three hours," the condition is void and the obligation single and absolute (a).—Upon this prin- Legal ciple, where the promise is impossible in law, both parties being impossibility. presumed to know the law, there is no valid contract; as a covenant by a person to pay a sum of money to himself and others, which (u) Liver Alkali Co. v. Johnson, L. R. 9 Ex. 338; 43 L. J. Ex. 216. (x) Forward v. Pittard, 1 T. R. 33; sce Bourne v. Gatliffe, 11 Cl. & F. 45; 8 E. R. 1019. (y) See Brett, J., Clifford v. Watts, L. R. 5 C. P. 588; 40 L. J. C. P. 36. (2) Hall v. Cazenove, 4 East, 477. See Doe v. Ulph, 13 Q. B. 204; 18 L. J. Q. B. 106. (a) Co. Lit. 206 b; Perkins, ss. 735, 736. See Re Hollis' Hosp. and Hague, (1899) 2 Ch. 540, 553; 68 L. J. C. 673. |