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20 Can. L. Times 359 (1901)
When the Impossible Excuses

handle is hein.journals/canlawtt20 and id is 363 raw text is: WHEN THE IMPOSSIBLE EXCUSES. WHEN TiE M POSSIBLE EXCUSES. Lex non cogit ad impossibilia. When, and when not, there is an implied condition in a contract, after its performance has become impossible, such as discharges the contracting parties, is a question fraught with considerable difficulty, and one which has led to di- versity of opinion among the Judges. All cases arising in this branch of the law, however, are referable to well estab- ished rules or certain well defined exceptions thereto. The difficulty arises in adapting the rules and exceptions to the varying cases. The rule has long since been established, that one may bind himself by an absolute contract to do an act which subsequently becomes impossible, or pay damages for non- performance, where the event which caused the impossibility might have been anticipated and guarded against in the contract. In 1855 Maule, J., in Canhani v. Barry (a), ob- served:-A man may, no doubt, for a good consideration contract to do that which lie cannot be sure that he will be able to do; a man may, if he chooses, covenant that it shall not rain to-morrow. The reason of the rule is, it was the fault or folly of the contractor, that he did not protect himself by specific exceptions in the contract. -On the other hand, however, if the contract were of such a nature that its performance was contemplated as being depen- dent on the continued existence of the subject of the contract; or such as it could not have reasonably been contemplated by the contracting parties that a contingency would arise to render its performance impossible, then in such a case the parties are excused in the event of impossibility of perform- ance. This rule was tersely illustrated by Lord Coke in Shelley's case (b), in these words:- If a lessee covenants to leave a wood in as good a plight as the wood was at the time of the lease, and afterwards the trees are blown down by (a) 15 C. B. 619. (b) 1 Coke at p. 98.

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