Some Practical Aspects of the Doctrine of Impossibility
![handle is hein.journals/illlr32 and id is 710 raw text is: SOME PRACTICAL ASPECTS OF THE DOCTRINE
OF IMPOSSIBILITY
J. Denson Smith*
ONE phase of the study of law
deals with the critical analysis
of decided cases having to do
with a given problem with a view to
attempting to draw from such cases
fundamental principles upon which
their solution may seem to hinge. From
this point of view what the courts are
doing takes precedence over their ex-
planatory language. The language may
be criticized, its use questioned, and
the true basis of decision emphasized.
This is the method common to the
legal scholar. But the chief concern
of the advocate is getting a favorable
judgment for his client. Here the lan-
guage of the court may seem as im-
portant as the basic factors that influ-
ence its action. Thus the cases where-
in a given doctrine is employed are
considered for the sake of discovering
the judicial method of approach and
disposition. Although law teaching
should include an evaluation of both
aspects, the utilitarian significance of
the court's language seems too often
neglected in legal writings.
This article will be concerned with a
consideration of the meaning of the.
doctrine of impossibility as a technique
for those who are called upon to em-
ploy it in the solution of actual cases.
There will be no attempt to consider
the multitude of cases wherein the
doctrine has been employed for the
* A.B., 1933, LL.B., 1930, Louisiana State;
J.S.D., 1935, Yale. Professor of Law, Louisiana
sake of separating those that may be
deemed worthy of approval from those
considered questionable. The discus-
sion is not aimed at an evaluation of
our mores, past or present, or the eco-
nomic and sociological factors which
may make for or against any particular
scope for the proper application of the
doctrine. The purpose is to examine
with reference to a specific problem a
judicial methodology familiar to the
profession as a whole and to consider
its significance and value in the pre-
sentation and disposition of the liti-
gated case.
The early attitude of the English
courts concerning the character and
effect of the contractual relationship
found ample expression in theF cele-
brated case of Paradine v. Jane.' There
it was bluntly and forcefully stated
that, When the party by his own con-
tract creates a duty or charge upon
himself, he is bound to make it good,
if he may, notwithstanding any acci-
dent by inevitable necessity; because
he might have provided against it by
his contract. Such a statement was
entirely acceptable to the individualis-
tic philosophic notions of the late
eighteenth and early nineteenth cen-
turies, which, carried into the field of
law, manifested themselves in the re-
quirement of a meeting of the minds
of the parties for the creation of con-
State University.
IAleyn 26 (1647).
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Some Practical Aspects of the Doctrine of Impossibility
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