Impossibility of Performance in UK Law

Leading Cases
  • Southern Foundries (1926) Ltd v Shirlaw
    • House of Lords
    • 22 Abr 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.

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

    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.

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

    The defence may be rebutted by proof of fault, but the onus of proving fault will rest on the plaintiff. This is merely to apply the familiar rule which is applied, for instance, where a carrier by sea relies on the exception of perils of the seas; if the goods owner then desires to rebut that prima facie defence on the ground of negligence or other fault on the part of the shipowner, it rests on the goods owner to establish the negligence or fault.

    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
  • The Product Safety and Metrology etc. (Amendment etc.) (EU Exit) Regulations 2019
    • UK Non-devolved
    • 1 de Enero de 2019
    ...... In the Weights and Measures Act 1985 omit section 76 (fees for performance of EU obligations) 37 . SCHEDULE 3 . Regulation 6 . Amendment of the ... the case of an interruptible system, this can also mean the impossibility to perform any measurement, or . the change in the measurement result is ......
  • East India Company Act 1803
    • UK Non-devolved
    • 1 de Enero de 1803
    ...... said recited Act are mentioned: Provided always, that the Impossibility of inquiring satisfactorily into the Loss of such Ship from all on board ..., in the Service of the said Company, beyond and. after the Performance of the Number of Voyages for which any such Ship or Ships respectively ......
  • Sale of Goods Act 1979
    • UK Non-devolved
    • 1 de Enero de 1979
    ......whose fulfilment is excused by law by reason of impossibility. or otherwise. . (7) Paragraph 2 of Schedule 1 below applies in ... . d . ) to raise money on the security of goods. . IV . Performance of the Contract Part IV . Performance of the Contract . S-27 . Duties ......
  • Carriage by Air and Road Act 1979
    • UK Non-devolved
    • 1 de Enero de 1979
    ......the record preserved by such other means. . (3) The impossibility of using, at points of transit and destination,. the other means which ...If, however, such carriage takes place in the performance of a contract. for carriage by air, for the purpose of loading, delivery ......
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Books & Journal Articles
  • REVIEWS
    • Núm. 5-3‐4, Julio 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
    • Núm. 3-2, Octubre 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
    • Núm. 9-2, Julio 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
    • Núm. 2-3, Diciembre 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 one ......
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