Impossibility of Performance in UK Law

Leading Cases
  • Great Peace Shipping Ltd v Tsavliris Salvage (International) Ltd (Cape Providence)
    • Court of Appeal (Civil Division)
    • 14 October 2002

    (i) there must be a common assumption as to the existence of a state of affairs; (ii) there must be no warranty by either party that that state of affairs exists; (iii) the non-existence of the state of affairs must not be attributable to the fault of either party; (iv) the non-existence of the state of affairs must render performance of the contract impossible; (v) the state of affairs may be the existence, or a vital attribute, of the consideration to be provided or circumstances which must subsist if performance of the contractual adventure is to be possible.

    In the leading judgment Dixon and Fullagar JJ expressed doubt as to the existence of a doctrine of common mistake in contract. They considered that whether impossibility of performance discharged obligations, be the impossibility existing at the time of the contract or supervening thereafter, depended solely upon the construction of the contract. They went on, however, to consider the position if this were not correct.

    Once the court determines that unforeseen circumstances have, indeed, resulted in the contract being impossible of performance, it is next necessary to determine whether, on true construction of the contract, one or other party has undertaken responsibility for the subsistence of the assumed state of affairs.

  • Southern Foundries (1926) Ltd v Shirlaw
    • House of Lords
    • 22 April 1940

    The only doubt I have felt is in regard to the well-known principle laid down by Chief Justice Cockburn in ( Stirling v. Maitland 5 Best & Smith, page 840) where he said, at page 852: "If a party enters into an arrangement which can only take effect by the continuance of a certain existing state of circumstances there is an implied engagement on his part that he shall do nothing of his own motion to put an end to that state of circumstances, under which alone the arrangement can be operative."

    Personally I should not so much base the law on an implied term, as on a positive rule of the law of contract that conduct of either promiser or promisee which can be said to amount to himself "of his own motion" bringing about the impossibility of performance is in itself a breach.

  • Brennan v Bolt Burdon (A Firm) and Others
    • Court of Appeal (Civil Division)
    • 29 July 2004

    There is a real difference between the situation where the compromise is agreed in ignorance of significant facts and the law which would be applicable to them (as in BCCI v. Ali) and the situation in which the compromise is agreed with no misapprehension of the facts at all (as in the present case), just an erroneous assumption about the law.

  • Joseph Constantine Steamships Line v Imperial Smelting Corporation
    • House of Lords
    • 09 May 1941

    If the meaning be that impossibility excuses performance the change of expression is comprehensible enough; it signifies only that the party in default cannot take advantage of his own wrong. It is a personal disqualification preventing him from taking advantage of a frustration which has automatically occurred, not a condition of its occurrence.

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Legislation
  • Gaols Act 1784
    • UK Non-devolved
    • January 01, 1784
    ... ... or Contractors giving sufficient Security, for the due Performance of their Contracts or Agreements, to the respective Clerks of the Peace ... and such Gaols are thereby rendered very unhealthy, from the Impossibility of accommodating the unhappy Persons confined therein with a sufficient ... ...
  • Sale of Goods Act 1893
    • UK Non-devolved
    • January 01, 1893
    ... ... acceptance in performance of the contract or not ... (4.) The provisions of this section do not ... impossibility or otherwise ... Implied undertaking as to title, &c. 12 Implied ... ...
  • East India Company Act 1803
    • UK Non-devolved
    • January 01, 1803
    ... ... said recited Act are mentioned: Provided always, that the Impossibility of inquiring satisfactorily into the Loss of such Ship from all on board ... after the Performance of the Number of Voyages for which any such Ship or Ships respectively ... ...
  • Sale of Goods Act 1979
    • UK Non-devolved
    • January 01, 1979
    ... ... or warranty whose fulfilment is excused by law by reason of impossibility or otherwise ... (7) Paragraph 2 of Schedule 1 below applies in relation ... (d) to raise money on the security of goods ... Part IV: Performance of the Contract ... 27: Duties of seller and buyer ... It is the duty ... ...
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Books & Journal Articles
  • REVIEWS
    • No. 5-3‐4, July 1942
    • The Modern Law Review
    Book reviewed in this article: POWER POLITICS. By Georg Schwarzenberger. JUVENILE DELINQUENTS GROWN UP. By Sheldon and Eleanor Glueck. THE INTERNATIONAL LAW OF JOHN MARSHALL. A Study of First Princ...
    ... ... F. A. M. IMPOSSIBILITY OF PERFORJWANCE. By R. G. MCELROY, edited by GLANVILLE ... an exposition of the law of impossibility of performance, though his book is more than adequate as such, as to analyse ... ...
  • REVIEWS
    • No. 3-2, October 1939
    • The Modern Law Review
    Book reviewed in this article: Workmen's COMPENSATION. By Sir Arnold Wilson, M.P., and Professor Hermann Levy. Vol. I: Social and Political Development. The British Constitution. By H. R. G. Greave...
    ... ... attempt to analyse the law relating to supervening impossibility of performance in contract. The author gives a useful ... ...
  • REVIEWS
    • No. 9-2, July 1946
    • The Modern Law Review
    Book reviewed in this article: Why Crime? Some Causes and Remedies from the Psychological Standpoint. By Claud Mullins. (London: Methuen. 1946. ix, 180 pp. 6s. net.) Salmond's Law of Torts. Tenth e...
    ... ... A. FARNSWORTH. IMPOSSIBILITY OF PERFORMANCE IN CONTRACT. By R. GOTTS- CHALK. (London: ... ...
  • NOTES OF CASES
    • No. 2-3, December 1938
    • The Modern Law Review
    ... ... OF CASE§ Frustration HE doctine of supervening impossibility of performance has developed by the gradual establishment of ... ...
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Law Firm Commentaries
  • No-Deal Brexit: Impact On Long-Term Commercial Contracts
    • Mondaq UK
    ... ... clause say (if there is one?) - can a supplier be excused from performance if goods are held at the border? Should I include a clause to facilitate ... unforeseen events) or "frustration" (termination because of impossibility of performance) is overstated by some commentators. However going forward, ... ...
  • COVID-19: Key İssues For Commercial Tenants
    • Mondaq UK
    ... ... A force majeure clause dictates what is to happen if performance of a contract becomes impossible because of a supervening event beyond the ... In the context of the current outbreak, impossibility of this sort is most likely to arise in contracts of sale or carriage, ... ...
  • Coronavirus and Force Majeure in English Law
    • JD Supra United Kingdom
    - Under English law, force majeure clauses in contracts may allow parties to avoid their performance obligations in certain extreme circumstances, as defined by the contract. - It is unlikely tha...
    ... ... majeure clauses in contracts may allow parties to avoid their performance obligations in certain extreme circumstances, as defined by the contract ... Impossibility of performance is a high bar to establish, and the English courts have ... ...
  • Making A UK Money Judgment Enforceable In Italy
    • Mondaq UK
    ... ... A unilateral denunciation is not among them. Absent an ... impossibility of performance, a fundamental change of circumstances ... or a breach by ... ...
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