The Effect of Supervening Impossibility of Performance on a Contract of Employment 1990 Acta Juridica 1990

1990 Acta Juridica 22 (1990)
The Effect of Supervening Impossibility of Performance on a Contract of Employment

handle is hein.journals/actj1990 and id is 32 raw text is: The Effect of Supervening Impossibility of
Performance on a Contract of Employment
MARTIN BRASSEY*
No one limps for another's hurt, says the proverb.'
- HopleyJ in the court a quo in Boyd v Stuttaford & Co 1910 AD 101
at 106-7.
I INTRODUCTION
Mr X works for Ms Y as a salesman. In terms of the contract, which is
for a year, he receives a basic wage and a commission on the sales he
makes. One day he finds it impossible to come to work: he is ill, say, or
there is a strike on the bus he normally uses, or he is driven by fear to take
part in a stay-away. Must she pay him his wage for the day? Must he
compensate her for the loss she suffers through his absence? Can she
dismiss him for absenteeism?
Two weeks later Ms Y's factory burns down. For the following month
she has no stock for Mr X to sell. Is he entitled to his basic wage for the
period? Can he claim compensation for lost commission? Can he,
without breaching his contract, resign and find another job?
For the answer to these copybook questions we can look to the general
principles of contract, for they apply equally to employment contracts.'
They are, insummary, the following:
1. a. For obvious reasons the law will not try to force people to do the
impossible; nor, in general, will it hold them liable for their failure
to do it. By operation of law, therefore, a debtor is relieved of an
obligation whose performance has become impossible for so long
as the impossibility endures. This is the principal rule.
b. The principal rule will not apply if the impossibility is attributable
to the fault of the debtor or if the debtor has assumed the risk of
non-performance. In these cases, the debtor remains bound to
perform the obligation: its non-performance is thus a breach of
contract for which damages are claimable.
2. When counter-performance by the creditor is conditional on
performance first (or simultaneously) being made by the debtor, the
creditor will have no duty to perform until the debtor has performed
or is willing and able to perform. That the debtor is unable to
perform because performance is impossible will not alter this
principle.
*BA (Cape Town) LLB HDip Tax Law (Wits), Professor of Law, University of the
Witwatersrand.
For a fuller discussion see W A Ramsden Supervening Impossibility of Perormance in the
South African Law of Contract (1985) ch 5.

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