Common Law and Uncommon Events: The Development of the Doctrine of Impossibility of Performance in English Contract Law
![handle is hein.journals/glj75 and id is 1597 raw text is: Common Law and Uncommon Events: The
Development of the Doctrine of Impossibility of
Performance in English Contract Law
JOHN D. WLADIS*
Since time immemorial, people have made contracts. For no doubt just as
long, the expectations created by these contracts have sometimes been disap-
pointed by subsequent events. If the disappointing event occurs before the
contract has been fully performed by both sides, the question then arises:
What is the legal effect of the event upon the unperformed contractual obli-
gations? Does the disappointing event discharge or only suspend the obliga-
tions, or does it have no legal effect? This question has been with us for
centuries' and can be exquisitely difficult to decide. This article studies the
English solutions to the question from late medieval times to the present.
In the law of contracts, cases presenting this question are usually classified
under the topic of impossibility, a shorthand reference to the doctrine of ex-
cuse for supervening impossiblity of performance. In England this topic is
sometimes called frustration, but this article uses the term frustration only
to refer to a particular part of the larger topic of impossibility-excuse for
inordinate delay.
English impossibility cases have traditionally played a significant role in
the teaching of contract law in American legal education. Most students in
American law schools encounter the English impossibility cases of Paradine
v. Jane,2 Taylor v. Caldwell,3 and Krell v. Henry4 in their first-year contract
* Associate Professor of Law, Delaware Law School of Widener University. A.B. 1969, Hamil-
ton College; J.D. 1972, Yale Law School. The author wishes to express his gratitude to Fairfax
Leary, Jr., and to Brian Simpson for their sage advice and comments upon a draft of this article,
and to his research assistant, Lawrence M. Clark, class of 1987, for his help with this article. This
article is dedicated to Professor Leary in honor of his retirement from full-time teaching.
1. The effect of a supervening event on an unperformed contractual obligaton is discussed in the
Digest (or Pandects) of Justinian published by order of that Byzantine Emperor in 533 A.D. DIG.
45.1.23, .33. The Digest is a compilation of the best of the Roman jurists, most of whose works
have not survived. See 1 S. Scorr, THE CIVIL LAW 15-18 (1932) (describing compilation of Di-
gest); id. 179-207 (Justinian's three prefaces to Digest that outline procedures to be followed in
compiling Digest).
2. Aleyn 26, 82 Eng. Rep. 897, Style 47, 82 Eng. Rep. 519 (K.B. 1647) (lease of land for years;
dispossession of lessee by Royalist forces during English Civil War held not to excuse obligation to
pay rent).
3. 3 B. & S. 826, 122 Eng. Rep. 309 (Q.B. 1863) (contract for use of performance hall and
gardens; hall destroyed by fire; contract terminated).
4. [1903] 2 K.B. 740 (C.A.) (hirer of flat along route of coronation procession excused from
paying rent when coronation postponed).
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Common Law and Uncommon Events: The Development of the Doctrine of Impossibility of Performance in English Contract Law
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