Breach, Supervening Impossibility and Risk
![handle is hein.journals/soaf95 and id is 28 raw text is: 16 THE SOUTH AFRICAN LAW JOURNAL
mandament van spolie, a valuable safeguard of the common law
against persons who take the law into their own hands.
M D BLECHER
BREACH, SUPERVENING IMPOSSIBILITY AND RISK
The distinction between situations where the rules governing super-
vening impossibility of performance obtain and those where the rules
governing risk obtain has long been known. The Romans appreciated
it, certainly by the time of Celsus (vide W A Ramsden 'Some Historical
Aspects of Supervening Impossibility of Performance of Contract'
(1975) 36 THRHR 153 at 157-8).
The rules relating to risk are exceptional, whereas the rules relating
to supervening impossibility fit in with the general principles of
contract. For example, the rules relating to risk form an exception to
the application of the synallagmatic nature of bilateral contracts,
while the rules relating to supervening impossibility of performance
conform to it. Furthermore, in sale risk forms an exception to the
general principle expressed in the maxim res petit domino. For this
reason, where the rules pertaining to risk obtain they prevail and the
rules of supervening impossibility of performance are excluded. The
general rules apply only where the exceptional rules do not.
It does not follow, however, that the rules relating to supervening
impossibility of performance will obtain where the rules relating to
risk do not apply, for the case may be one of simple, inexcusable
breach of contract, as occurred recently in Gengan v Pather 1977 (1)
SA 826 (D).
The facts of the case are simple. A sold B certain business premises
already occupied by B under a lease. A clause in the deed of sale
provided that risk in the property would pass to the purchaser only on
registration of transfer into his name. This, in effect, excluded the
special rule relating to risk in sale under which the risk passes to the
purchaser as soon as the sale is perfecta (Voet 18.6.1; Home v Hutt
1915 CPD 331).
James JP in the case under review put it this way: 'By agreeing to
clause 6(c) [the clause in question] the parties contracted out of the
special rules of the common law relating to the passing of risk and as
a result the general common-law rule regarding loss of property
through ill-fortune applies-res perit domino' (at 830B; but see
Mackeurtan's Sale of Goods in South Africa 4 ed (1972) by Bryan
O'Donovan 152nl).
After signature of the agreement of sale, but before transfer of the
property into the purchaser's name, the premises sold were (it seems
accidentally) partly destroyed by fire. In the opinion of Kumleben J,
who presided at an earlier hearing of the case to decide an exception,](ViewImageLocal?handle=hein.journals/soaf95&div=11&collection=&method=preview&ext=.png&size=3)
What Is HeinOnline?
Contact us for annual subscription options:
Already a HeinOnline Subscriber?
profiles profiles most
Breach, Supervening Impossibility and Risk
Contact us for annual subscription options:
Already a HeinOnline Subscriber?
profiles profiles most