This section is from the book "The Law Of Contracts", by William Herbert Page. Also available from Amazon: Commercial Contracts: A Practical Guide to Deals, Contracts, Agreements and Promises.
If one of the parties to a contract acts voluntarily in such a manner as to make it impossible for him to perform the contract, such conduct on his part amounts to breach of such contract.1 This is sometimes spoken of as breach of an implied covenant or an implied condition;2 but there is no more of an implied condition in this case than in any other case of breach. By making performance on his own part impossible, the party who has thus acted has shown by his acts that he renounces the contract, or that he does not intend to perform it. This is a form of breach which is much like renunciation before performance.3 The only difference is that in renunciation in the limited sense, the intention not to perform is indicated by the declaration of the party who renounces the contract; while in breach by making performance on his own part impossible, the party who renounces the contract does so by his acts and conduct. There are therefore many cases in which a party manifests his intention not to perform by acts in which the adversary party knows of such intention; and in cases of this sort the result can be explained either on the theory of renunciation by declaration or of the voluntary creation of an inability to perform,4 although it is not a disability in the sense of a personal disability, but merely of an actual inability to perform.
24 Makletzova v. Diaghileff, 227 Mass. 100, 116 N. E. 231.
25 Pass Packing Co. v. Torch, 87 Miss. 694, 40 So. 228.
26 Shubert v. Rosenberger, 204 Fed. 934, 45 L. R. A. (N.S.) 1062.
27 Burtis v. Thompson, 42 N. Y. 246, 1 Am. Rep. 516.
1 England. Planche v. Colburn, b Bing. 14; Palmer v. Temple, 9 Ad. & El. 508; Ogdens v. Nelson , A. C. 100.
United States. Lovell v. St. Louis Mutual Life Ins. Co.. Ill U. S. 264, 28 L. ed. 423; E. I. Du Pont de Nemours Powder Co. v. Schlottman, 218 Fed. 353 [affirming, Schlottman v. E. I. Du Pont de Nemours Powder Co., 210 Fed. 356].
Louisiana. Lloyd v. Dickson, 116 La. 00, 40 So. 542.
Massachusetts. Karnes v. Savage, 14 Mass. 425.
Ohio. Loren v. Hillbouse, 40 O. S. 302; Black v. Albery, 89 O. S. 240, 106 N. E. 38; Suter v. Farmers' Fertilizer Co., - Ohio - . 126 N. E 304.
Oklahoma. Stark v. Duvall, 7 Okla. 213, 54 Pac. 453.
Oregon. Krebs Hop Co. v. Livesley, 51 Or. 527, 92 Pac. 1084.
Utah. Teachenor v. Tibbals, 31 Utah 10, 86 Pac. 483.
Vermont. Dyer v. Lalor, - Vt. - 109 Atl. 30.
Washington. Hunter v. Wenatchee Land Co., 50 Wash. 438, 97 Pac. 404.
Wisconsin. Treat v. Hiles, 81 Wis. 280, 50 N. W. 896; Lyle v. McCormick Harvesting Machine Co., 108 Wis. 81, 51 L. R. A. 906, 84 N. W. 18; Moha v. Hudson Boxing Club, 164 Wis. 425, L. R. A. 1917B, 1238, 160 N. W. 266.
While it is spoken of as impossibility,5 it is not impossibility of the sort that operates as a discharge. In that sense, impossibility is a standardized impossibility, without reference to the ability of the individual in question to perform or not to perform.6 In the sense of voluntary creation of impossibility, the impossibility seems to consist of the actual inability of the party in question to perform.7