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.
In an English case,1 it was said that "where the law creates a duty or charge and the party is disabled to perform it, without any default in him, and has no remedy over, there the law will excuse him. * • * But when the party by his own contract creates a duty or charge upon himself, he is bound to make it good if he may, notwithstanding any accident by inevitable necessity, because he might have provided against it by his contract." The case in which this statement was made was really not a case of impossibility at all. An action was brought upon a covenant in a lease to pay rent, and the lessee pleaded that he had been expelled and kept out of possession of the demised premises by Prince Rupert, an alien-born and an enemy to the king and his kingdom, and that by reason of such expulsion or deprivation of possession the lessee could not come into possession of the profits. Either this was an attempt to set up dispossession by one who did not claim under the lessor, as an excuse for non-payment of rent, or else it amounted to an allegation that the lessee had not been able to obtain the funds with which he had been expected to pay the rent, and therefore that he should be excused from paying. Even in the most liberal possible view of impossibility, the fact that the debtor has not sufficient funds with which to pay his debts, is not a defense to the debtor in an action by the creditor; and this case could be ignored if it were not for the fact that the decisions since that time have gone back to this case as the basis of the distinctions which modern courts draw, and of the fundamental theory of subsequent impossibility. For this reason it is necessary to distinguish between impossibility as an excuse for the non-payments of obligations which are not assumed by voluntary agreement, and subsequent impossibility as an excuse for non-payments of obligations which are assumed by voluntary agreement.
14 See Sec. 2708.
15 Jones & Laughlin Steel Co. v. Graham, 273 Ill. 377, 112 N. E. 967; Hein-rich v. Jenkins, 98 Minn. 489, 108 N. W. 877.
16 Jones & Laughlin Steel Co. v. Graham, 273 Ill. 377, 112 N. E. 967. (The legal possibility of the contract was assumed without discussion in this case.)
1 Paradine v. Jane, Aleyn 26.