contract law A contract is a legally enforceable agreement between two or more parties that creates, defines, and governs mutual rights and obligations between them. A contract typically involves the transfer of goods, services, money, or a promise to tran ...

, impossibility is an excuse for the nonperformance of duties under a

contract A contract is a legally enforceable agreement between two or more parties that creates, defines, and governs mutual rights and obligations between them. A contract typically involves the transfer of goods, services, money, or a promise to tran ...

, based on a change in circumstances (or the discovery of preexisting circumstances), the nonoccurrence of which was an underlying assumption of the contract, that makes performance of the contract literally impossible. For example, if Ebenezer contracts to pay Erasmus £100 to paint his house on October 1, but the house burns to the ground before the end of September, Ebenezer is excused from his duty to pay Erasmus the £100, and Erasmus is excused from his duty to paint Ebenezer's house; however, Erasmus may still be able to sue under the theory of

unjust enrichment In laws of equity, unjust enrichment occurs when one person is enriched at the expense of another in circumstances that the law sees as unjust. Where an individual is unjustly enriched, the law imposes an obligation upon the recipient to make res ...

for the value of any benefit he conferred on Ebenezer before his house burned down. The parties to a contract may choose to ignore impossibility by inserting a

hell or high water clause A hell or high water clause is a clause in a contract, usually a lease, which provides that the payments must continue irrespective of any difficulties which the paying party may encounter, usually in relation to the operation of the leased asset ...

, which mandates that payments continue even if completion of the contract becomes physically impossible. In common law, for the defense of "impossibility" to be raised performance must not merely be difficult or unexpectedly costly for one party, there must be no way for it to actually be accomplished; however, it is beginning to be recognized that "impossibility" under this doctrine can also exist when the contemplated performance can be done but only at an excessive and unreasonable cost, i.e., commercial impracticability. On the other hand, some sources see "impossibility" and

impracticability The doctrine of impracticability in the common law of contracts excuses performance of a duty, where the said duty has become unfeasibly difficult or expensive for the party who was to perform. Impracticability is similar in some respects to the d ...

as being related but separate defenses. The

English English usually refers to: * English language * English people English may also refer to: Peoples, culture, and language * ''English'', an adjective for something of, from, or related to England ** English national ide ...

case that established the doctrine of impossibility at

common law In law, common law (also known as judicial precedent, judge-made law, or case law) is the body of law created by judges and similar quasi-judicial tribunals by virtue of being stated in written opinions."The common law is not a brooding omnipresen ...

is ''

Taylor v. Caldwell ''Taylor v Caldwell'' is a landmark English contract law case, with an opinion delivered by Mr Justice Blackburn which established the doctrine of common law impossibility. Facts Caldwell & Bishop owned Surrey Gardens & Music Hall, and agreed ...

.''3 B.&S. 826, 122 Eng.Rep. 309 (K.B. 1863).

References

Common law Contract law Equitable defenses {{contract-law-stub

See also

References