The Sanctity of Contracts in English Law - College of Social ...

Impossibility of Performance 47without any qualification, to perform an act, he couldnot excuse himself from the obligation to pay damagesfor failing to carry out his promise merely by provingthat his failure was due to physical or legal impossibilityof performance. 16 Where there is a positivecontract to do a thing the contractor must performit or pay damages for not doing so, although inconsequence of unforeseen accident the performanceof his contract has become unexpectedly burdensome,or even impossible. But during the last one hundredyears the courts have been evolving a doctrine tothe general effect that if there should occur someintervening event or change of circumstances sofundamental as to strike at the root of the agreement,the contract should be treated as brought to an endforthwith, quite apart from the expressed volition ofthe parties themselves. 18Whatever may be the correct way of expressingthe justification for the doctrine today, I believe thatits theoretical basis in its early stages was the impliedterm. A term was implied by the courts discharginga contract in the events which had happened on theground that the court found itself able to " inferfrom the nature of the contract and the surroundingcircumstances that a condition which was not expressedwas the foundation upon which the partiescontracted." 1916 See, for example, Paradine v. Jane (1647) Aleyn 26.is Taylor v. Caldwell (1863) 3 B. & S. 826; Krell v. Henry[1903] 3 K.B. 740; Joseph Constantine SS. Line, Ltd. v.Imperial Smelting Corporation [1942] A.C. 154.19 Per Lord Loreburn in Tamplin SS. Co., Ltd. v. Anglo-MexicanPetroleum Products Co., Ltd. [1916] 2 A.G. 397, 404.