Sec 314

If by a casus which involves no culpability or guarantee in a party contracting to deliver a thing, such thing has ceased to exist, the contract falls. Thus in a case already noticed, where the proprietor of a music hall agreed to let the plaintiff have the use of it for concerts on certain days, it was held that the destruction of the hall by fire was a defence to a suit for breach of contract.1 A contract, also, for the delivery of a certain quantity out of a specific crop of potatoes is pro tanto avoided by a failure of the crop, so that the specified quantity is not produced.2 But, as we have seen, such impossibility is no defence to a suit on a contract to do a specific thing, unless all things of that class are made impossible.3 Thus, it is no defence to a suit to build a house, that the house when building was burned, though it would be otherwise if by casus or vis major, the building of all houses in that place was made impossible.4 - Vangerow5 takes the following positions: -

I. When a casual impossibility occurs without any fault of the debtor, then the creditor bears the loss (res creditoris peri-culo est, res creditori perit); nor can he claim damages, or even recover back what he has paid. On the other hand, the debtor bears the loss (res debitoris periculo est, res debitori perit) when in cases of casual impossibility he has guaranteed the risk, or has in any way provoked it. As we have seen, the same distinction obtains in our own law.6

II. Various attempts have been made to reduce the rules relating to periculum to a leading principle, but without success. By many of the older authorities the maxim casum sentit dominus is invoked; but this maxim, even in its widest acceptation, can be only understood to mean that a claimant loses his claim on the destruction of the thing from which it springs, and cannot be stretched so as to determine the influence that the destruction of the res debita has on an obligation. In fact, the champions of this maxim are obliged to subject it to so many restrictions and exceptions that little of it remains. - "Wachter and others fall back upon the maxims impossibilium nulla obligatio est,1 and casus a nullo praestantur;2 but, in reply, it may be said (1) that these maxims are negative, and, therefore, not adapted to the decision of the question before us; and (2), that while they affirm the debtor's liberation in case of the casual destruction of the thing from which the obligation flows, they do not determine how far in such cases the creditor continues bound. - Madai lays it down as a rule that the party to whom performance is possible must perform, but that the party whose performance becomes impossible is freed from liability. Vangerow replies that while this principle is not incorrect in respect to those obligations which relate to the delivery of a thing, it leads in other cases (e. g., in the locatio conductio) to erroneous results, and cannot be, therefore, accepted as giving a universal rule. Koch, Fuchs, and others adopt, as decisive, the rule that when performance becomes impossible without the promisor's fault, then the obligation may by fiction be regarded as fulfilled. But, according to Vangerow, the proof passages adduced do not sustain this view, and the solution itself does not reach many important bailments. Vangerow, therefore, holds that no common rule for determining necessity in all cases can be found, but that each case depends upon the terms of the particular class of obligations to which it belongs.

Impossibility of delivery subsequently intervening a defence.

1 Taylor v. Caldwell, 3 B. & S. 826; supra, sec 300.

2 Howell v. Coupland, L. R. 1 Q. B. D. 258; supra, sec 290; infra, sec 330. To the same point Mr. Wald, in his notes to Pollock on Cont. p. 362, cites Wells v. Calnan, 107 Mass. 514; School Dist. v. Dauchy, 25 Conn. 530; Dexter v. Norton, 47 N. Y. 62; Walker v. Tucker,.

70 111. 527. See, also, Lord v. Wheeler, 1 Gray, 282; Oakley v. Morton, 1 Kern. 25; and cases cited supra, sec 300.

3 Supra, sec 313; infra, sec 330.

4 Adams v. Nichols, 19 Pick. 275; supra, sec 311.

5 Pandekt. iii. sec 591.

6 Supra, sec 311.

III. In unilateral obligations the rule is that with the casual destruction of the object the obligation falls, and, therefore, in such cases the creditor takes the loss.3

1 L. 185, de R. J.

2 L. 23, fin. eod.

3 He cites to this point L. 107, de solut. (46, 3), where Pomponius says: "Verborum obligatio . . . resolvitur naturaliter veluti solutione, aut qnum res in stipulationen deducta sine culpa promissoris in rebus humanis esse desiit." Other passages to the same effect are also noticed. From the nature of the case, however, this rule only applies in cases where a specific thing is the object of the obligation. When the description is by quantity or genus, then the debtor is not liberated by the casual destruction of the res debita, quia genus non perit.

IV. With regard to bilateral obligations for the transfer of things, a party who without fault or guarantee is prevented from fulfilling his contract by the casual destruction of the goods, is entirely freed from the duty. Whether the other party continues bound is the subject of conflicting opinion.

(1.) In contracts of sale the rule is repeatedly given in the Roman standards, that as soon as the contract is completed the risk passes to the purchaser, and that, therefore, when the goods are casually destroyed, the purchaser is bound to pay their price.

(2.) The same rule applies to what are technically called innominat-contracts. Vangerow concludes that as contracts for sale and innominat-contracts are almost the only bilateral contracts for the transfer of things, the rule before us may be regarded as of general application. It rests, he argues, on a sound reason. If both obligations entering into such a contract are fulfilled on both sides, then, when after delivery the thing is accidentally destroyed or injured, the loss is to fall on the receiver; and that which is right in cases of immediate delivery, remains right in cases in which delivery is rightfully excused, the more so because from the time of the completion of the contract the promisee has the disposal of the thing. If, however, the delivery of the goods is negligently delayed, then the vendor has to take the risk.

V. The rules above stated are modified in cases in which a sale is conditional. If the condition has not taken effect, the transaction is still open, and a casual loss falls on the promisor. If the condition is complied with, the loss falls on the promisee.1 When, however,the accident to the res debita occurs while the condition is still pending, a distinction is to be made between periculum interitus, and periculum deteriorations. If the res debita ceases to exist during the pendency of the condition, then the contract is on both sides released. If after the casus the condition ceases to operate, then the obligation can never be perfect, since, when on its face it becomes operative, it has no object on which to act.

1 "Quodsi sub conditione res venie-rit, si quidem defecerit conditio, nulla est emtio, sicuti nec stipulatio; quodsi extiterit, Proculus et Octavenus emtoris esse periculum ajunt; idem Pom-ponius libro nono probat." L. 8, de per. et comm. rei vend.