Whether the parties are entitled to restitutio in integrum where a contract partly-performed is discharged by mutual assent.

(n) Above, pp. 54, GO, 71, 135, 147 - 150, 644, 660.

(a-) Above, pp. 58, 62.

(y) Above, p. 45, n. (f).

(z) Whitbread & Co. v. Watt, 1902, 1 Ch. 835.

(a) Above, pp. 60, 359, 661; and see previous note.

(b) Elliott v. Crutchley, 1904, 1 K. B. 565, 569. Thus at common law, after a sale of goods, conditioned to be annulled if the goods sold be not of a certain quality, the purchaser is at liberty to return the goods on ascertaining that they are not of the quality stipulated; Bannerman v. White, 10 C. B. N. S. 844; above, p. 725.

(c) Above, pp. 750 - 752.

A contract for the sale of land may be discharged, before breach, on the ground of impossibility of performance. This form of discharge is perhaps no more than a species of discharge by mutual assent on failure of a condition subsequent; it is the impossibility, not so much of performing the contract as of fulfilling the condition on which alone it was to be carried out, that is the ground of release (f). But this kind of discharge only occurs where the parties have not expressly contemplated or provided for the event of failure of the condition, so that their assent to the discharge is purely an implication of law (g); and it may therefore he conveniently considered by itself. Discharge by impossibility of performance is illustrated where a particular thing is sold for delivery on a future day, subject to the implied condition, pure and simple (h), that it shall then be in existence, and before that day the thing is destroyed without the vendor's fault. In this case the contract is discharged; for it is intended, by implication of law, that in case the necessary condition of performing the agreement be rendered impossible of fulfilment without the parties' fault, they shall be excused from carrying out their mutual undertaking (i). We have seen (k) that, as a rule, the estate in land sold belongs in equity to the purchaser, and the property stands at his risk, as from the date of the agreement to sell; and in consequence of this rule the obligation of the contract is not discharged by the practical destruction, pending completion, of the thing sold: but the agreement may nevertheless be specifically enforced (l). If, however, land be sold subject to the express or implied condition, not warranted to be fulfilled, that the land shall be delivered over on completion in some particular state, the proviso is impliedly annexed, that if without the vendor's fault it shall become impossible for him to deliver possession of the land in that state, the further performance of the contract shall be excused (m). Thus, if a theatre, music-hall, hotel, public-house, or shop were sold with possession to be given on a future day fixed for completion (n), on condition (without warranty) that the premises should be delivered over in a fit state for giving performances or carrying on business therein; or if the vendor had agreed to erect some buildings on the land sold by the day fixed for completion, time being of the essence of the contract, and the premises or buildings were accidentally burnt down a few days before the time for completion, the parties would be discharged from further performance of the contract (o). And the same doctrine is applicable, not only where it is an essential term of the contract that the property sold shall be handed over on completion in its existing state or in some other particular state, but in every other instance where land is sold subject to some condition, which is contemplated but not warranted to be fulfilled at the time of completion, and before completion the fulfilment of this condition is rendered impossible by some extraneous cause beyond the control of the parties themselves (p). Thus, if a house were sold on the express or implied condition that the King's coronation procession should pass in front of its windows on the day after that fixed for completion, and before completion the King were to die or the route of the procession were to be altered by authority, the contract would be discharged for impossibility of performance (q). Where a condition of this kind is not plainly expressed, the question, whether it is to be implied, must be determined by reference to the terms of the whole contract and the circumstances of the case (r).

Impossibility of performance.

(d) dough v. London & North Western Ry. Co., L. R. 7 Ex. 26, 37; Lagunas Nitrate Co. v. Lagunas Syndicate, 1899, 2 Ch. 392, 423; above, pp. 745, 746, 750 sq., 768, 903. It is submitted that this rule was overlooked by Cozens-Hardy, J., in Cornwall v. Henson, 1899, 2 Ch. 710, reversed on another point, 1900, 2 Ch. 298, where he decided that, on a contract to sell land for a price payable by instalments, the vendor rescinding the contract for the purchaser's renunciation of it (see below, pp. 938 - 940) before payment of the last instalment was nevertheless entitled to retain all the instalments already paid. It became unnecessary to review this decision in the Court of Appeal, but the Court very plainly intimated their doubts of its correctness; 1900, 2 Ch. 302, 305. The rule in Whincup v. Hughes, L. R. 6 C. P. 78, to which Cozens - Hardy, J., appealed as the general rule (1899, 2 Ch. 715), was that applicable in the case, not of rescission of the contract, but of its discharge for impossibility of performance. In such case the contract is not rescinded; the parties are simply excused from further performance; below, pp. 917, 920.

(e) Above, pp. 750 - 752 and n. (I).

(/) See Benjamin on Sale, 455, 456.

(g) Elliott v. Crutchley, 1904, 1 K. B. 565, 568 - 570.

(h) Above, p. 913.

(i) Taylor v. Caldwell, 3 B.&S.

826; Howell v. Coupland, 1 Q. B. D. 258; above, p. 441, n. (r).

(k) Above, pp. 438 - 442.

(l) Above, p. 441.

(m) See Taylor v. Caldwell, 3 B. & S. 826, 833, 834; Appleby