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94 S. African L.J. 162 (1977)
Temporary Supervening Impossibility of Performance

handle is hein.journals/soaf94 and id is 172 raw text is: TEMPORAR Y S UPER VENING IMPOSSIBILITY OF PERFORMANCE The meaning and effect of supervening impossibility of performance of a contractual obligation in our law, it is submitted, is not fully understood. De Wet and Yeats say:1 'In contracts of a continuous nature per- formance may become temporarily impossible and temporary impossi- bility must be treated in the same way as partial impossibility and must be decided according to the rules ... for partial impossibility.' This statement appears to be open to two objections. First, it implies that it is only in contracts of a continuous nature that performance can become temporarily impossible. This is clearly not so, and examples of cases where the performance promised is not of a continuous nature abound.2 Secondly, the statement appears to confuse temporary impossibility with partial impossibility; they are, it is submitted, two entirely distinct and separate notions. It is this last matter to which I shall devote my attention in this article. In Roman law the perpetuatio obligationis operated to excuse a delay in performance where the obligation had been rendered temporarily impossible.3 It did not terminate an obligation to perform something but merely suspended it.4 If, when the temporary impossibility ceased to operate, the obligation was capable of being performed in full or, at any rate, substantially, full or substantial performance could be demanded. The example5 given by De Wet and Yeats to illustrate the operation of the principle of law which they maintain is applicable in cases of temporary impossibility of performance seems to be a case of partial impossibility and not one of temporary impossibility at all.6 It would appear that De Wet and Yeats largely rely on the decision in Beretta v Rhodesia Railways Ltd.7 The facts of that case were that in 1940, when the plaintiff had been employed on the pensionable estab- I J C de Wet and J P Yeats Die Suid-Afrikaanse Kontraktereg en Handelsreg 3 ed (1964) 122, my translation. For example, delays in completing building contracts, contracts of carriage and the like. See R G McElroy Impossibility of Performance (Cambridge University Press 1941) 180ff. s W A Ramnsden 'Some Historical Aspects of Supervening Impossibility of Performance of Contract' (1975) 38 THRHR 153, 284, 370. 4 See, for example, D 46.3.98.8. 5 A case of a contract of service for one year interrupted by a two-month illness. 6 In fact De Wet and Yeats themselves so state at 122. 1947 (2) SA 1075 (SR).

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