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33 Stellenbosch L. Rev. 605 (2022)
Supervening Impossibility of Performance - A Conceptual Conundrum and Restatement of Principles

handle is hein.journals/stelblr33 and id is 623 raw text is: SUPERVENING IMPOSSIBILITY OF PERFORMANCE -A CONCEPTUAL CONUNDRUM AND RESTATEMENT OF PRINCIPLES Jacques du Plessis BComm LLB LLM PhD Distinguished Professor, Stellenbosch University* Abstract In defining supervening impossibility of performance, the South African law of contract recognises a general rule , which entails that performance is excused if impossibility is brought about by vis major or casus fortuitus. This rule is then made subject to a vague and broad list of qualifications. It is argued here that this approach is unhelpful, and that the general principles on supervening impossibility of performance may be restated in more concrete terms. The general rule may simply maintain that absolute impossibility excuses a debtor. The rule should then be subject to clear and specific qualifications. These qualifications entail that liability may nonetheless be imposed if (i) the debtor actually foresaw or reasonably should have foreseen the event giving rise to impossibility; (ii) the debtor could have taken reasonable steps to avoid such an event or overcome its consequences; (iii) the debtor created the impossibility; or (iv) the debtor was in mora at the time of impossibility. It is argued that it may be unhelpful to include fault on the side of the debtor in this list, inasmuch as fault could actually obscure other qualifications to the general rule, rather than act as a qualification in its own right. Keywords: Supervening impossibility of performance; vis major; force majeure; casus fortuitus; termination of contractual liability 1 Introduction Parties to a contract normally expect that liability would terminate due to performance. However, there are some exceptional grounds for releasing a party from liability in the absence of performance. Supervening impossibility of performance,' which recently has been particularly prominent due to the * I am grateful for the comments of my colleague Gerhard Lubbe and the anonymous referees. See Nuclear Fuels Corporation of SA (Pty) Ltd v Orda AG 1996 4 SA 1190 (A) 1200 1203; Orda AG v Nuclear Fuels Corporation of SA (Pty) Ltd 1994 4 SA 26 (W) 72; MV Snow Crystal: Transnet Ltd t/a National Ports Authority v Owner of MV Snow Crystal 2008 4 SA 111 (SCA) para 28. The concept supervening impossibility is an import from English law into South African law (see eg Stillwell v Kama 1916 EDL 319 322), but the locus classicus of Peters Flamman and Co v KokstadMunicipality 1919 AD 427 unequivocally held that our rules derive from the civil law, and rejected earlier attempts to import a common-law approach, which relied on implied terms to determine whether liability had terminated. 605 https://doi.org/10.47348/S LR/2022/i4a2

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