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56 L. Q. Rev. 519 (1940)
The Principle of Impossibility in Contract

handle is hein.journals/lqr56 and id is 529 raw text is: THE PRINCIPLE OF IMPOSSIBILITY IN CONTRACT. INTRODUCTORY. T HE law of contract is the handmaid of commerce; and the doctrine of the discharge of contract by impossibility is a product of commercial necessity. Further, it is a fairly recent product; for it was not until late in the great period of British industrial and commercial expansion that it began to be developed, and it did not really achieve prominence until the first World War, with the huge dislocation of business that it produced, made its adoption and examination by the highest tribunals inevitable. The doctrine arose, we repeat, because it had to. But it had also to be fitted into the framework of the existing law, and to have rules formulated for its application. Judges therefore set to work to explain and define it in terms with which they and the legal profession were already familiar; and at the moment of writing there are at least two conflicting theories in the field, both having authority in the House of Lords. The difficulty of applying either of them consistently has been great, as the most cursory examination of the leading war-time decisions will show; and this fact must be taken as the excuse for the advocacy, in the following pages, of yet another theory of impossibility which, it is with deference suggested, is founded more surely in the traditional principles of the law of contract than either of those at present in the field. The subject must, at this time, be of the highest importance; and as the law we shall have to discuss is certainly still in its formative period, it is thought that the moment is particularly opportune for an examination of it against the background of the jurisprudence into which it has to be fitted. Such examina- tion will largely take the form of ' rationalization ', an often justly suspected process. But it embraces the whole field of inductive reasoning; and if this can assist us to a knowledge of the anatomy of the doctrine of impossibility it will, it is believed, have been legitimately used. We may give a very brief outline of the stages through which the doctrine has passed.1 They may be resolved into four: For more detail on some of these points see Page in 18 Micbigan L. Rev., pp. 589 sqq.

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