The Coronation Cases—I
| Date | 01 April 1941 |
| DOI | http://doi.org/10.1111/j.1468-2230.1940.tb00777.x |
| Published date | 01 April 1941 |
THE
MODERN
LAWREVIEW
VOl.
IV
APRIL,
1941
No.
4
THE
CORONATION CASES-I
HE
Coronation Cases are a landmark in the history of
impossibility of performance of contract, and are
still
the
T
most disputed group of cases
in
this difficult topic. Two
cases
stand out from the rest. One
is
Krell
v.
Henry,l
which has
been vigorously defended* and as vigorously criticised.s The
object of
this
article
is,
first
of all, to examine
it
anew and to
contend for a more restricted interpretation
of
it
than that usually
adopted. Then,
in
the light of this interpretation, we shall
consider the present position of the lessee's contract to pay rent
where the premises are destroyed during the term. The other
important Coronation Case is
Chandler
v.
Webster?
which now
has few apologists. The authority and
scope
of this decision will
be
considered in the next succeeding article.
I.
KRELL
V.
HENRY
AND
THE
DOCTRINE
OF
FAILURE
OF
CONSIDERATION
To begin the story leading up to
Krell
v.
Henry
we must
go
back for
a
moment to the well-known Surrey music-hall
case
(Taylor
v.
Caldwell,
1863).s
The first point to remark about this
is
that
it
was a true case of impossibility of performance. The
1
[1903]
2
K.B.
740.
*
P.
A.
Landon in (1936),
52
L.Q.R.
168, an endeavour to dispel the doubt
cast
upon
the case by Lord Wright in
Maritime National Fish, Ltd.
v.
Ocsan
Trawlers, Ltd.,
[I9351
A.C.
524 at 528.
a
D.
M. Gordon
in
(1936), 52
L.Q.R.
324.
'
[1go41
I
K.B.
493.
6
3
B.
&
S.
826. The principle
of
this
case
is studied
in
McElmy,
Impossibility
of Pcrfomrance,
to be published
shortly
by the Cambridge University Press.
242
MODERN LAW REVIEW
April,
1941
action was brought by the hirer (or licensee) of the music-hall
against the owner, and the owner was held to be excused from
his contractual obligation to provide the hall on the ground that
it was
a
“specified thing” that had “perished.” Had the action
been brought the other way round, by the owner against hirer
for unpaid
hire,
the case would not strictly have been one of
impossibility, for there would have been no impossibility in the
payment of the hire.
It
should then have been regarded
as
one
of failure of consideration, the hirer being excused from his under-
taking to pay hire on the ground that the expected return for
it
had substantially failedf
The actual decision
in
Taylor
v.
CaldweU
was that impossibility
of performance was excusable
in
law
if
the contract concerned
a
“given person or thing” and
if
that person or thing “perished.”
These were the limits of the decision, and they were steadfastly
adhered to throughout the nineteenth century.
An
instructive
pair of cases to illustrate them
is
Nickoll
v.
Ashton
(xgo~),
and
Askmore
v.
Cox
(1899).’
In
Nickoll
v.
Ashton*
a particular ship,
named to
cany
a cargo
of
cotton seed, had,
owing
to stranding]
ceased to exist
as
a
cargocarrying ship at the material time fixed
for performance.
It
was held that the contract was discharged.
But
in
Ashmore
v.
Coxo
the
Court
refused to apply the principle
of
Taylor
v.
CaldweU
to
a
contract very similar to that in
Nzckoll
v. Ashtort, save only that
it
provided for the shipment
of
goods
‘*by sailer or sailers,” instead of
a
named ship. Here there was
no “given thing’’ within the rule.
But the effect of
Taylor
v.
Caldwell
upon legal theory does
not end here. The particular way in which the rule was expressed
was by a fiction of implied condition. The Court adopted this
fiction out of respect for
Paradine
v.
Jane
;lo
it
wished to intro-
duce an exception to the rule in
Paradine
v.
Jane
without impair-
ing the authority of the rule. Unfortunately, however, the fic-
titious character of the implication was not made clear in
Taylor
v.
Caldwell,
and the result is that other Courts have treated the
principle of that case
as
being wider than
it
really was.
It
has
The judgment,
at
p.
840,
says that “both parties are excused,” without
distinguishing between the separate legal doctrines applicable
to
each,
viz..
excusable impossibility
on
the one side, and failure
of
consideration resulting
from excusable impossibility on the other. See further,
on
this
distinction,
Williams
in
McElroy,
op.
cil.,
pp.
gg-100.
7
Other cases decided
on
or partly on the rule during the remainder of the
century were
Boast
v.
Firth
(1868),
L.R.
4
C.P.
I
;
Baily
v.
De Crespigny
(1869).
below;
Robinson
v.
Davison
(187r),
L.R.
6
Ex.
269;
Howell
v.
Coupkrnd
(1876),
I
Q.B.D.
258.
See
also
AHleby
v.
Myers
(1867),
L.R.
2
C.P.
651,
which will be
discussed in the next article.
a
[I~OI]
2
K.B.
126.
*
[18gg]
I
Q.B.
436.
followed in
Sargant
v.
P&sm
(1923). 39
T.L.R.
378.
lo
(1647).
Aleyn
26.
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