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.
An attempt has been made in obiter to state the classes of acts or events which will operate as impossibility which will discharge the contract. It has been said that apart from impossibility due to the act of the adversary, which is a form of breach,1 operative impossibility consists of acts of God and acts of the law.2 This classification, however, is generally repudiated whenever it is sought to apply it. There are many forms of impossibility due to the act of God as distinguished from the act of man, which do not operate as a discharge.3 The attempt to carry the idea of the "act of God" over from the law of carriers, where the use of the term has some justification,4 has met with little support in the adjudicated cases. If the covenant is unconditional in terms, the fact that performance is prevented by an act of God does not of itself operate as a discharge.5 The fact that the act of God might have been foreseen by a reasonable man, has been regarded as sufficient in many cases to prevent it from acting as a discharge.6
9 See Sec. 2705 et seq.
1 See ch. LXXXIV.
2 United States v. Gleason, 175 U. S. 588, 44 L. ed. 284; Columbus Railway, Power & Light Co. v. Columbus, 249 U. S. 399, - L. ed. - [affirming, 253 Fed. 4991; Lima Locomotive & Machine Co. v. National Steel Castings Co., 155 Fed. 77, 11 L. R. A. (N.S.) 713; Toomey v. United States, 49 Ct. Cl. 172; Lakeman. v. Pollard, 43 Me. 463, 69 Am. Dec. 77; Zanello v. Smith & W. Iron Works, 62 Or. 213, 124 Pac. 660.
3 Berg v. Erickson, 234 Fed. 817, L. R. A. 1917A, 648; Cox v. Chase, 95 Kan. 531, L. R. A. 1915E, 590, 148 Pac 766.
See Sec. 2703 et seq.
4 See Sec. 2674.
5 Prather v. Latshaw, - Ind. -, 122 N. E. 721; Cox v. Chase, 95 Kan. 531, L. R. A. 1915E, 590, 148 Pac. 766; Run-yon v. Culver, 168 Ky. 45, L. R. A. 1916F, 3, 181 S. W. 640.
6 See Sec. 2703 et seq.
Another attempt to classify impossibility has resulted in the following classification: (1) Where the impossibility is created by law. (2) Where the continued existence of something essential to the performance is an implied condition of the contract, and such thing has ceased to exist. (3) Where contracts are made for personal services which can not be performed by the assignee or a personal representative, and the person who has agreed to perform has died, or is prevented from performing by sickness, imprisonment and the like.7 This classification is substantially correct, as far as it goes, and the classes of impossibility there indicated are generally regarded as operative; but in many jurisdictions forms of operative impossibility are recognized which can not be brought under any of these classes except by a liberal use of fictions and by an artificial explanation of the meaning of the terms which are employed in defining such classes.8 In cases which arose out of the war of 1914 an attempt has been made, especially by the English courts, to add another class of cases to the existing classes of impossibility which had been recognized by the courts. The new class of cases consists of those in which there has been a frustration of the voyage or the venture which the parties had undertaken. The difficulties which arise from taking an idea which is essentially one of construction of the terms of the contract and of performance of the terms as thus construed, and of importing it into the doctrine of impossibility, the essence of which is that a combination of facts has arisen which the parties had not anticipated, has been discussed elsewhere.9 It may be added that the results of the attempt to work this idea into the general doctrine of impossibility have not been such as to indicate that this doctrine will aid in the development of the doctrine of impossibility of performance.
Whatever basis of classification may be adopted, it is clear that external facts are necessary to cause operative impossibility. The fact that performance is impracticable to the specific individual does not amount to impossibility.10 A contract to deliver goods is not discharged by the fact that the shipper is unable to obtain cars.11 A contract to pay money is not discharged by the fact that the specific promisor is unable to obtain the money with which to perform.12
7 Middlesex Water Co. v. Whiting Co., 64 N. J. L. 240, 81 Am. St. Rep. 467, 49 L. R. A 572, 45 Atl. 092.
8 See, Impossibility of Performance, as an Excuse for Breach of Contract, by Frederick C. Woodward, 1 Columbia Law Review 529; and, Intervening Impossibility of Performance as Affecting the Obligations of Contracts, by William J. Conlen, 66 University of Pennsylvania Law Review 28.
9 See Sec. 2675 and Sec. 2758 et seq.
10 American Towing & Lightering Co. v. Baker-Whiteley Coal Co., 117 Md. 660, 84 Atl. 182; Brown v. Ehlinger, 90 Wash. 585, 156 Pac. 544; Roberts v. American Column & Lumber Co., 76 W. Va. 290, 85 S. E. 535.