Sec 299

Suppose the law of the jurisdiction forbids the alienation of a particular thing; is a contract to dispose of this thing valid? In the Roman law, where these restrictions are not uncommon, this incapacity is a defence to a suit for the performance of a contract. When, by the policy of the law, a thing cannot be alienated, it cannot be sued for.1 The same position is illustrated by our own law in reference to champertous contracts,2 and to contracts for sale of smuggled goods and intoxicating liquors when such sale is prohibited.3 Mr. Pollock4 places in the same category crown jewels, and ships in the royal navy, which cannot be the subject of private ownership. sec 300. When a thing sold is deficient in a quality essential to its market value, the sale may be rescinded, or the vendor held liable on breach of warranty. Supposing both parties were ignorant at the time of the defect, the contract fails to bind on ground of error in substantia.5 On a similar principle may be explained rulings to the effect that when it is promised that a certain person will do a particular thing, the sickness or death of that person, supposing that the duty be personal and not one to be done by a substitute, will be a defence to a suit on the promise.6 Objective destruction falls under the same to something which he actually has. And in McCarty v. Blevins, 5 Yerg. 195, it was held that where A. agrees with B. that the foal of A.'s mare shall belong to C, a good title vests in the latter when parturition from the mother takes place, though A. immediately after the colt was born, sold and delivered it to D."

And so of non-alienability of things disposed of.

When essential quality of thing: promised is destroyed, contract is void.

In the Roman law, the stipulation of a thing whose delivery is objectively impossible (quae dari non potest) is not in itself binding. This principle is applied to things which are non-existent, nor does it matter whether they never existed at any time, or they ceased to exist only after the contract was executed. Under the same category fall things whose alienation is forbidden by law. And the rule applies as much to stipulations to do impossible things as to deliver things which are non-existent. (For authorities, see Mommsen, op. cit. 115.)

1 Mommsen, op. cit. 22.

2 Infra, sec 421.

3 Infra, sec 360 et seq.

4 Pollock, Wald's ed. 349.

5 Savigny, System, iii. p. 283; supra, sec 186.

6 Robinson v. Davison, L. R. 6 Ex. 269; Boast v. Frith, L. R. 4 C. P. 1; Stewart v. Loring, 5 Allen, 306. For other cases see infra, sec 323, 613; Mommsen, ut supra, 203.

head; and when the material by which a contract is to be executed is destroyed by casus, then the contract falls.1 In this line may be considered an interesting case elsewhere noticed, where an agreement was made to let a music hall for a series of concerts, the hall being specially constructed for this purpose, and where it was held that the agreement was conditioned on the continued existence of the hall, and that the subsequent destruction of the hall by fire relieved the party agreeing to let it from liability. "The authorities," said the court, "established the principle that, where from the nature of the contract, it appears that the parties must from the beginning have known that it could not be fulfilled, unless when the time for the fulfilment of the contract arrived some particular thing continued to exist, so that when entering into the contract they must have contemplated such continued existence as the foundation of what was to be done; then, in the absence of any express or implied warranty that the thing shall exist, the contract is not to be construed as a positive contract, but as subject to an implied condition that the parties shall be excused in case before breach the contract becomes impossible from the perishing of the thing without the default of the contractor."2

1 Infra, sec 308, 310, 322; Taylor v. Caldwell, 3 B. & S. 838; Howell v. Coupland, L. R. 9 Q. B. 462; aff. L. R. 1 Q. B. D. 258; Appleby v. Myers, L. R. 2 C. P. 651; Anglo-Egypt. Nav. Co. v. Rennie, L. R. 10 C. P. 271; Lake-man v. Pollard, 43 Me. 463; Dexter v. Norton, 47 N. Y. 62; Spalding v. Rosa, 71 N. Y. 40.

2 Taylor v. Caldwell, 3 B. & S. 838. Taylor v. Caldwell was affirmed subsequently in Howell v. Coupland, L. R. 9 Q. B. 462; aff. L. R. 1 Q. B. D. 258; infra, sec 314. In Russell v. Levy, 2 Low. Can. 457 (cited Benj. on Sales, 3d Am. ed. sec 570 a), the point at issue is thus stated by Sir J. Stuart, C. J.: "The sale was not a sale of birch timber generally, but of a specific determined quality of timber, to be collected north of Quebec, to be piled on a wharf during the winter, measured and delivered according to contract; and it having been destroyed by fire, it could not be replaced by any other description of timber. Now this timber was destroyed by vis major, without any fault or neglect on part of Loundes (the contractor), who was thereby prevented from fulfilling his contract, and in such case no liability attaches by law upon the party by reason of the non-execution of the contract." That equity will relieve against a forfeiture for a breach of a condition subsequent when caused by casus, or fraud, or surprise, see 2 Wh. & T. Lead. Cas. in Eq. 4th ed. 1105; Eaton v. Lyon, 3 Ves. Jr. 690; Henry v. Tupper, 29 Vt. 358; Harris v. Troup, 8 Paige, 423.