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23 Rutgers L. Rev. 419 (1968-1969)
Of Nuts, and Ships, and Sealing Wax, Suez, and Frustrating Things - The Doctrine of Impossibility of Performance

handle is hein.journals/rutlr23 and id is 425 raw text is: OF NUTS, AND SHIPS, AND SEALING WAX, SUEZ, AND FRUSTRATING THINGS- THE DOCTRINE OF IMPOSSIBILITY OF PERFORMANCE JOHN HENRY SCHLEGEL* Perhaps no part of the law evokes the spirit of Alice more readily than the law of impossibility of performance of contracts. The inter- national trade transactions which recur throughout the cases seem, to most people, to partake of Wonderland: strange places-Smyrna, Zan- zibar, strange things-esparto, sultanas, and the fascinating world of ships. Surely the cheshire cat was no more startling than these phe- nomena. No less wondrous than the factual situations is the judicial doctrine fashioned to order the area. The implied term, basic assump- tions, true construction, and the sanctity of contracts when gathered together remind one of the conversation at a certain tea party. In the last 15 years, the English courts and a number of com- mentators have attempted to make some sense out of this Wonderland. The last major batch of cases, those growing out of the closing of the Suez Canal in 1956,1 may serve as a baseline by which to judge their combined efforts. An examination of these cases reveals, however, that if the doctrinal confusion has at last abated it is apparent only to those great logicians Tweedledum and Tweedledee, and if the law may be considered to be back on the right track, as some maintain,2 it is evi- dent only to those great social critics the Walrus and the Carpenter. This examination of the doctrine of impossibility of performance will proceed from several perspectives. First, the historical develop- ment of the doctrine will be reviewed; second, a specific group of cases, those growing out of the first Suez crisis, will be examined in an effort to illustrate the doctrine in operation; third, an attempt will be made to isolate the content of the notion of impossibility; finally, a brief reconstruction of the doctrine will be offered. I. THE DOCTRINE IN HISTORICAL PERSPECTIVE One of the most persistent of all legal myths is that of the golden age of the common law when the defense of impossibility of perfor- 0 Staff Attorney, Appellate Division, Legal Aid Bureau of Chicago. B.A., Northwestern University, 1964; J.D., University of Chicago, 1967. The author was a Stanford Teaching Fellow, 1967-68. The author wishes to express appreciation to Professor Grant Gilmore for his interest, his helpful suggestions, and his effective goad without all of which this piece would never have been written. 1. See section II infra. 2. McElroy, Frustration and the Force Majeure: The Common Law and the Common Market, 1963 N.Z.L.J. 185, 188.

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