Sec 315

An agreement to deliver fungible articles, e. g. gold, is not released by the loss of such articles by the party so agreeing. No matter what calamity may overtake him, or how completely he may be stripped of his possessions, he continues bound. Even when he designates the coin he has to deliver, the conclusion, according to the Roman law, is the same. There may be even no coin of the stamp specified any longer in existence; but this would not relieve him, if the coin was designated by him as representing a certain amount of money. It would be otherwise if the coin was to be delivered as a curiosity, or as a specific article of distinct value.1 An illustration of the rule before us is to be found in a recent English case already cited. V. agreed in March to sell to P. 200 tons of potatoes, to be grown on certain designated land of V. In consequence of the potato blight, V. was able to deliver only 80 tons, that being the sole produce of the land in question. It was held that he was only bound to this amount, though it would have been otherwise had he agreed to deliver 200 tons of potatoes without this restriction. - "The contract was for 200 tons of a particular crop in particular fields" ..."not 200 tons of potatoes simply, but 200 tons off particular land," . . . "and therefore there was an implied term in the contract that each party should be free if the crop perished."2

But not of fungible things.

1 Mommsen, op. cit., 50; Lloyd v. Guibert, L. R. 1 Q. B. 121; Youqua v. Nixon, Pet. C. C. 221; Gilpins v. Con-sequa, Pet. C. C. 91; Lovering v. Coal Co., 54 Penn. St. 291.

2 Howell v. Coupland, L. R. 9 Q. B. 462; aff. on app., 1 Q. B. D. 258; as cited and adopted in Pollock on Cont. Wald's ed. 364-5; supra, sec 314; infra, sec 330. By some of the old jurists it was maintained that in all contracts the clause rebus sic stantibus or si res maneant quo sunt loco, was tacitly understood; and that all contracts, therefore, were conditioned upon the continuance of the material facts on which they were based. Eberhard, Abhand. von der Klausel, rebus sic stantibus, in dessen Beitragen zur Erlauterung der Deutschen Rechte, Th. I. S. 1; Barbosa, thesaur. Lib. XIV. cap. I. ax. 14; Cocceji, de clausula, rebus sic stantibus, Tom. I. disp. 15; Koch, Forder. sec 137, II. 506. That the maxim cannot be maintained as a general rule is shown by Grotius, de jure belli ac pacis, Lib. II. cap. 16, sec 24, and more recently by Weber, Systematische Entwicke-lung der Lehre von der naturlichen Verbindlichkeit. sec 90; and it is repu-.

Sec 316

When the delivery of a specific article is undertaken (there being no absolute guarantee to deliver), this is dependent on the power of the contracting party to deliver the article. If it has been without his fault withdrawn from his control after the promise was made, this is a defence. This, in the Roman law, has been held to apply to the carrying off of goods by robbery, theft, and embezzlement.1 It applies, also, to cases where from some unforeseen cause, amounting to casus, the specific article, though there had been every reason to expect it, could not be obtained by the vendor at the time of the proposed delivery.2 - This rule, however, does not, as we have seen, apply to fungible articles. All the wheat a party may have on hand at the time of a contract to deliver a certain amount of wheat, may be destroyed by casus. This does not excuse him from his contract. Wheat can be procured elsewhere, and it must be procured.3