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.
4 England. Nickoll v. Ashton , 2 K. B. 126; Horlock v. Beal , 1 A. C. 486; F. A. Tamplin Steamship Co. v. Anglo-Mexican Petroleum Products Co. , 2 A. C. 397.
United States. Reed v. United States, 78 U. S. (11 Wall.) 591, 20 L. ed. 220.
Alabama. Griel Bros. Co. v. Mabson, 179 Ala. 444, 43 L. R. A. (N.S.) 664, 60 So. 876.
Maine. American Mercantile Exch. Co. v. Blunt, 102 Me. 128, 120 Am. St. Rep. 463, 10 L. R. A. (N.S.) 414, 10 Am. & Eng. Ann. Cas. 1022, 66 Atl. 212.
Michigan. Hooper v. Mueller, 158 Mich. 595, 133 Am. St. Rep. 399, 123 N. W. 24.
Minnesota. Dow v. Sleepy Eye State Bunk, 88 Minn. 355, 93 N. W. 121.
New York. Dexter v. Norton, 47 N. Y. 62, 7 Am Rep. 415; Dolan v. Rod-gers, 149 N. Y. 489, 44 N. E. 167; Buffalo & Lancaster Land Co. v. Bellevue
Land & Improvement Co., 165 N. Y. 247, 51 L. R. A. 951, 59 N. E. 5; Cam-eron-Hawn Realty Co. v. Albany, 207 N. Y. 377, 49 L. R. A. (N.S.) 922, 101 N. E. 162.
Tennessee. Heart v. East Tennessee Brewing Co., 121 Tenn. 69, 130 Am. St. Rep. 753, 19 L. R. A. (N.S.) 964, 113 S. W. 364.
Virginia. Virginia Iron, Coal & Coke Co. v. Graham, - Va. -, 98 S. E. 659.
Washington. The Stratford v. Seattle Brewing & Malting Co., 94 Wash. 125, L. R. A. 1917C, 931, 162 Pac. 31.
For a genuine case of construction see, Halloran v. Schmidt Brewing Co., 137 Minn. 141, L. R. A. 1917E, 777, 162 N. W. 1082.
5 See Sec. 2577 and ch. LXXXIV.
6 Chicago, Milwaukee & St. Paul Ry. v. Hoyt, 149 U. S. 1, 37 L. ed. 625; Dexter v. Norton, 47 N. Y. 62, 7 Am. Rep. 415; Stewart v. Stone, 127 N. Y. 500, 14 L. R. A. 215, 28 N. E. 595; Park-
This form of stating the rule conforms more nearly to the actual facts of the case than the former method of stating it. The converse of the statement is undoubtedly correct. If the contract shows that the parties have contemplated the possibility of some subsequent act or event which renders performance impossible, and if they have made provision therefor, putting the risk of loss on one or the other of the parties to the contract or apportioning the loss, such provisions are valid, and full effect will be given thereto.7 This, however, is merely a special form of express condition subsequent,8 and since the parties have agreed in advance upon the consequences of the happening of such future act or event which prevents performance, the ordinary rules of impossibility have no application.
er v. Macomber, 17 R. I. 674, 16 L. R. A. 858, 24 Atl. 464.
"We regard it as thoroughly settled that the words of a mere general covenant will not be construed as an undertaking to answer for a subsequent event happening without the fault of the covenantor, which renders performance of the covenant itself not merely difficult or relatively impossible, but absolutely impossible, owing to the act of God. the act of the law, or the loss or destruction of the subject-matter of the contract. Where performance is thus rendered impossible, the inquiry naturally arises as to whether there was a purpose to covenant against such an extraordinary and therefore presumably unapprehended event, the happening of which it was not within the power of the covenantor to prevent. The tempest, for instance, may destroy that which must exist if performance of the covenant is to remain possible, and it would seem evident in such a case that it was not within the contemplation of the parties that the maker of the covenant should answer in damages for what he could in no wise control. But, on the other hand, a person entering into a charter party might be answerable for delay caused by adverse winds, since it would be presumed that the parties contracted with such a possibility in mind. Shubrick v. Salmond, 3 Burr. 1637. A well-known English writer on the law of contracts says: 'By the modern understanding of the law, we are not bound to seek for a general definition of "the act of God," or vis major, but only to ascertain what kind of events were within the contemplation of the parties;' and he further says upon the same point: 'We can not arrive, then, at any more distinct conception than this: an event which, as between the parties and for the purpose of the matter in hand, can not be definitely foreseen or controlled. In other words, we are thrown back upon the nature and construction of the particular contract.' Pollock, Principles of Contract, 362. In Hayes v. Bick-erstaff. Vaughan, 118, 122, it was declared that a man's covenant shall not be strained so as to be unreasonable, or that it was improbable to be so intended, without necessary words to make it such; for it is unreasonable to suppose a man should covenant against the tortious acts of strangers impossible for him to prevent, or, probably, to attempt preventing." Krause v. Board of Trustees, 162 Ind. 278, 102 Am. St. Rep. 203, 65 L. R. A. Ill, 70 N. E 264.
7 See Sec. 2578.
8 See Sec. 2574 et seq.
There are many future acts or events which prevent performance which are apparently not within the contemplation of the parties at the time at which they entered into the contract, but which nevertheless do not amount to a discharge.9 In order to bring these cases within the operation of the general principle, it is necessary to disregard the actual intention of the parties and to substitute therefor a standardized intention which the law fixes arbitrarily. Accordingly, it is necessary to ascertain the facts which the law regards as operative discharge before it is possible to tell what acts the parties are assumed to contemplate in advance and what acts are assumed not to be within the contemplation of the parties.