Sec 312

A party to a contract, who, by his own action, interposes an insuperable bar in the way of the performance of the contract by the other party, cannot claim damages for such non-performance. The promisor, in other words, is excused to the extent in which performance is made impossible by the promisee.4 The same rule applies where the obligor of a bond makes the performance of its condition impossible;5 and where an employer interferes so as to prevent the performance of his work by the contractor;6 and where an author is prevented from contributing to a periodical by the abandonment of the periodical by the publisher.7 "It is a clear principle of law that if by any act of one of the parties the performance of a contract is rendered impossible, then the other side may, if they choose, rescind the contract; and it appears sufficient if the contract cannot be performed in the manner stipulated, though it may be performed in some other manner not very different."1 And, as a general rule, a performance conditioned on an impossibility created by the other side cannot be compelled.2

Party making performance of a contract impossible cannot complain.

1 McCreery v. Green, 38 Mich. 172.

2Wheeler v. Ins. Co., 82 N. Y. 547. 3 Infra, sec 323; Wolf v. Howes, 20.

N. Y. 197; Clark v. Gilbert, 26 N. Y. 279; Spalding v. Rosa, 71 N. Y. 40; Wheeler v. Ins. Co., 82 N. Y. 547.

4 Infra, sec 603, 712; Wald's Pollock, ut supra, 371, and cases there cited; Arthur v. Wynne, L. R. 14 Ch. D. 603; Roberts v. Bury Com., L. R. 4 C. P. 755; 5 C. P. 310; Giles v. Edward, 7 T. R. 181; Holme v. Guppy, 3 M. & W. 387; Ellis v. Hamlen, 3 Taunt. 53; Raymond v. Minton, L. R. 1 Ex. 244; Clearwater v. Meredith, 1 Wall. 25; Johnston v. Caulkins, 1 Johns. Cas.

116; Hurd v. Gill, 45 N. Y. 341; Stewart v. Keteltas, 36 N. Y. 388; Tone v. Doelger, 6 Rob. (N. Y.) 251; Johnson v. Somerville, 33 N. J. L. 152; Kline v. Culter, 34 N. J. Eq. 329; Navigation Co. v. Wilcox, 7 Jones L. 481; Tewskbury v. O'Connell, 21 Cal. 60; Reynolds v. R. R., 11 Neb. 186; and cases cited infra, sec 716-747, 901.

5 Boswick v. Swindells, 3 A. & E. 881; Pindar v. Upton, 44 N. H. 358; Tasker v. Bartlett, 5 Cush. 359.

6 Thornhill v. Neats, 8 C. B. N. S. 831.

7 Planche v. Colburn, 8 Bing. 14; Leake, 2d ed. 65 709.

Sec 313

The rule casus non praestantur, according to Momm-sen,3 is to be considered as prescribing that, in cases of casual impossibility (casuellen Unmoglichkeit), the promisor shall not be liable in damages. But the impossibility must be commensurate with the duty. Where the impossibility is only partial, it relieves from liability only pro tanto.4 The questions, what abatement of price is to be made in cases of partial performance, and whether in such cases the contract can be rescinded, are elsewhere distinctively discussed.5 As a rule, fractional impossibility only abates pro tanto.6 To make casual impossibility in such cases a ground for release in toto, it must go to the whole claim. It must also be permanent. It is true that to its permanency it is not essential that there should be absolutely no prospect of its future removal. But if the impediment be of a continuous character, then, as has been already shown in reference to continuous impediments existing at the time of the contract, it vacates the contract; nor can such a contract be subsequently, at some remote period, called into activity by the removal of an impediment of an apparently permanent type. Whether, when the impediment is temporary, this vacates the contract, depends upon whether the performance of the contract falls within the time during which the impediment exists. If it does, the impediment is regarded in the "same light as a permanent impossibility.7 But when the performance is not limited to be within this specified period, its efficacy is not affected by the temporary impediment.8

Casual impossibility mustbe permanent and absolute.

1 Mellish, L. J., Panama Tel. Co. v. India Rubber Telegraph Works, L. R. 10 Ch. 532, citing Planclie v. Colburn, 8 Bing. 14; Leake, 2d ed. 708.

2 Infra, sec 547; and see infra, sec 603-4, 716, 747, 901.

3 Op. cit. sec 25, p. 286.

4 Infra, sec 899; L. 40, sec 1, D. de cond. indeb. (12, 6); L. 21, D. de hered. vend. (18, 4).

5 Infra, sec 580, 899.

6 Infra, sec 330.

7 L. 9, sec 4, L. 133, 34, D. locati (19, 2).

8 See supra, sec 298 et seq.