Lecture Notes on Impossibility in Contract Law

Introduction

• Claim to Performance: Not available if performance is impossible.
• Impossibility: Two main categories impact a claim for performance.

Categories of Impossibility

1. Absolute Impossibility

• Definition: Performance is objectively impossible; no one can perform the contractual obligation.
• Generic vs. Non-Generic Goods:
  • Generic Goods: Claim for absolute impossibility is not available. Debtor can obtain goods from another supplier.
  • Non-Generic Goods: Claim arises if goods are unique and cannot be sourced elsewhere.
    • Example: Unique goods destroyed post-contract but pre-delivery.
• Implication: No claim to performance if absolute impossibility is proven.

2. Relative Impossibility

• Definition: Performance is not absolutely impossible but unreasonable to require.
• Subcategories:
  1. Practical Impossibility:
     • Concept: Performance possible but requires unreasonable effort/expense.
     • References: Recognized in German and French civil codes.
  2. Moral Impossibility:
     • Concept: Performance possible but unreasonable due to potential danger to health or freedom.
  3. Legal Impossibility:
     • Concept: Performance becomes legally impossible due to changes in law or public policy.

Contracts Relating to Personal Services

• Nature: Services closely linked to the identity/character of the contracting party.
• Examples: Authors writing books, bands performing concerts.
• Legal Stance:
  • Generally not enforceable if the personal character is essential.
  • Reasons:
    • Infringes on individual liberty.
    • Forced performance may lead to poor quality work.
    • Difficulty in assessing quality of performance by the court.