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.
Difficulty or expense in performance is not regarded as original impossibility 1 any more than it is regarded as subsequent impossibility.2 A contract to pack a certain kind of fish at a given point, and to sell them, has been held to be possible although it was not shown that such fish could be obtained within many hundreds of miles of the point at which they were to be packed.3
The technical application of the rules of original impossibility undoubtedly leads to absurd results in extreme cases, although the nature of the facts is such that these absurdities do not appear so much in original impossibility as they do in subsequent impossibility. The same reasons which are beginning to cause the courts to declare that questions of subsequent impossibility should be treated as the average man would treat them,4 and that in cases in which performance is possible only at an expense which is ruinous to the one party and of little benefit to the other, the parties should not be forced into such economic waste under penalty of an action to recover damages for breach of contract, induce a similar feeling in cases of original impossibility.
7 Sheffield v. Hancock County, 164 Ia. 561, 146 N. W. 439.
8 Reid v. Alaska Packing Co., 43 Or. 429, 73 Pac 337.
9 Reid v. Alaska Packing Co., 43 Or. 429, 73 Pac. 337.
(An additional reason for upholding this contract was found in the suggestion that the contract might be performed by packing such fish in Alaska no matter where they were captured.)
1 Reid v. Alaska Packing Co., 43 Or. 429, 73 Pac. 337.
For the unconscionable contract, see Sec. 636 et seq.
2 See Sec. 2705 et seq.
3 Reid v. Alaska Packing Co., 43 Or. 429, 73 Pac. 337.
4 See Sec. 2706.
The difficulty in formulating a rule which will protect the rights of both parties is due in fact to our theory of the consequences of impossibility. The courts have felt that they had to choose between holding, on the one hand, that the contract was possible of performance, and giving damages for breach thereof; and of holding, on the other hand, that the contract was impossible and that in case of original impossibility no contractual liability had ever existed. In this dilemma' the courts have been strongly inclined to hold doubtful contracts as possible of performance, since to do otherwise would be to deny all rights to the party to whom such promise was made, and who had acted in reliance thereon. At the same time, a more nearly just result could frequently be reached if some means could be devised for making full compensation for damages actually sustained by reliance upon such promise, while denying damages for breach of contract based on the ordinary rules for determining the amount of damages.8