Impossibility

A thing which under the law or according to the due course of nature cannot be done or i>erformed. Impossibility of performance is an important head of the law of contract, and the questions arising as to its effect may be affected by the classification to which the Impossibility is assigned, the time at which It arises, and whether it affects the promise or the consideration for it. There may be an impossibility of fact, existing in the nature of things, or arising out of the circumstances of the case or a legal Impossibility created hy law. Of the first kind there may be a contradiction in the contract resulting from promises inconsistent with each other when made. There may also be a physical impossibility as when the thing contracted for is against the course of nature. Of the latter class examples are suggested of an agreement “to make two spheres 6t the same substance, but one twice the size of the other of which the greater should fall twice as fast as the smaller when they were both dropped from a height; or to construct a perpetual motion the latter being still attempted. Wald, Poll. CJontr.

350.

— A physical impossibility may be either obsolitte, which means impossible in any case, as if one should contract to reach the moon;

— or relative, as to make a payment to one who is (lead. Of this kind is what is termed practical impossibility, as when a ship is so injured that it cannot be repaired except at an excressive or unreasonable cost; in this case it is treated as a total loss, being physically but not practically possible to repair. Certain accidents occurring from death, tempests, and the like are characterized by the phrase “impossibility arising by the act of God” (g. V.}. A contract or condition, the performance of which is made Impossible by a rule of law, Is termed a legal impossibility; as if one should give a bond to secure a simple contract with a collateral agreement that there should be no merger of the contract debt. A logical impossibility exists when the agreement Is Inconsistent with the nature of the transaction, as where a gift is made to (pe expressly for his own benefit with a condition that he Immediately transfer It to a third person. The impossibility may exist at the time of making the agreement, in which case It is sai0 to be original;

— or it may be caused by matter arising ex post facto, as where the party to be benefited dies after the contract to be executed though before the performance. Such subsequent Impossibility may be caused by the act of the party making the promise or tlio party to be benefited, or of a stranger, as a public enemy (q. v.J, or by the act of God fq. v.J. An agreement to perform an impossibility whether in law or in fact is void; Wald, Poll. Contr. 352; Leake, Contr. 358; Harr. Contr. 34, 174. See L. R. 5 0. P. 577; Board of Coru’rs of Mahoning County v. Young, 59 Fed. 96, 8 C. C. A. 27. There may, however, be the liability in damages for Uie breach of an unqualified undertaking to perform an impossibility; Chicago, M. & St. P. R. Co. V. Hoyt, 149 U. S. 1, 13 Sup. Ct 779, 37 L. Ed. 625; the real question in such a case is the existence of the liability; 2 Q. B. 680; It is a question of construction, whether the language of the contract Is to be treated as not applying to a situation which renders Its literal performance impossible; Harriman, Contri 176. A contract to perform a notorious impossibility known to the parties to be such at the time of making the contract is void; 16 M. & W. 253; L. R. 4 Q. B. 124; L. R. 6 0. P. 577; if the impossibility has arisen after the making of the contract, although without any fault of the covenantor, he is not discharged from liability under it; Jacksonville, M., P. Ry. & Nav. Co. v. Hoopsioned by the act of a stranger; 2 Ld. Raym. 1164; 2 El. & BL 688;

— or of alien enemies; Aleyn 26. It is held to be an excuse when caused by the non-continuance either of the subjectmatter of the contract or of the conditions essential to its performance; Stewart v. Stone, 127 N. Y. 500, 28 N. E. 695, 14 L, R. A. 215; Bufi^alo & L. Land Co. v. Improvement Co., 165 N. Y. 247, 69 N. E. 5, 51 L. R. A. 951. Certain contracts are construed as containing an implied exception of impossible events, and even general words in the contract will not be held to apply to the possibility of the particular contingency which afterwards happened; Leake, Contr. 702; L. R. 4 Q. B. 185; Walker v. Thicker, 70 111. 527; Dexter v. Norton, 47 N. Y. 62, 7 Am. Rep. 415. Where, In an action of breach of promise of marriage, a plea that consummation had become impossible by reason of bodily disease endangering the life of the defendant, was held by four judges to three in the exchequer chamber to be no defence, the court of the queen’s bench having been equally divided; El. Bl. & El. 748, 29 L. J. Q. B, 46; but of this case It is said that “it is so much against the tendency of the latter cases that it is of little or no authority beyond the point actually decided;” Wald, Poll. Contr. 378; and in an American case upon analogous facts the court approved the criticism upon the English case and refused to follow it Where the contract is for personal services, there is an implied condition that the parties should be alive to perform them; Blakely v. Sousa, 197 Pa. 305, 47 Atl. 286, 80 Am. St. Rep. 821. Likewise where a party becomes, without his own fault, incapable of fulfilling the contract in his lifetime; Dickey v. Linscott, 20 Me. 463, 37 Am. Dec. 66; Spalding v. Rosa, 7l N. Y. 40, 27 Am. Rep. 7; Green v. Gilbert, 21 Wis. 395. Impossibility may arise by the default of either party. Default of promisor is breach of the contract; default of promisee discharges promisor and may be treated as breach;