IMPOSSIBILITY OF THE PERFORMANCE
Most Americans value their power to contract and the accompanying ability to
either enjoy the advantages of the contract or incur the cost of violating it. The
freedom to choose what duties to take on in order to govern one's own personal and
professional destiny is critical to our economic and personal well-being. The
freedom to contract, as one expert put it, is analogous to the right to engage in
business as a seller or a customer.
Every week, we all engage into dozens of contracts. When you purchase a goods
using an online account or a credit card, you are agreeing to pay the credit card
company for the thing you get. You are agreeing to pay money for access to space
every time you buy a ticket to an event or pay a parking garage. The list goes on
and on. Our lives are always surrounded by contractual responsibilities that we
must fulfil.
The most common legal action is a claim to impose responsibility for carelessly
causing another's injury or for damages for breach of contract (contract cause of
action). In a contract action, the plaintiff must prove the existence of an
enforceable contract, the defendants' breach of the contract, and the damages
produced by the breach. And the defendant must either dispute the contract's
existence, deny the breach, reject the damages, or provide a sound legal
explanation why the contract is unenforceable. The impossibility of performance is
one of such defence. Impossibility can be used to denote that the obligations under
the contract has not been fulfilled because it becomes impossible to do it.
Impossibility of performance may be used to excuse failure to execute in particular
instances.
The Section 56 of the Indian Contract Act, 1872, talks about “the impossibility of
the performance of contract.” It contemplates various circumstances under which
an agreement may be void, since it is not possible to carry it out. An impossibility
of performance is when duty and the obligations of a contract between one or more
parties cannot be done or completed under normal circumstances. The provisions
contained in this section are closely related with the “doctrine of frustration of the
contract.” The first paragraph of Section 56 tells that “An agreement to do an act
impossible in itself is void (Initial impossibility).” For example, A signs a contract
with B of making a diamond using marble. The second paragraph talks about the
subsequent impossibility of the performance “a contract to do an act which after
signing contract becomes impossible to do or by some reason which the promisor
could not prevent becomes void. When the act becomes impossible to do or
unlawful (supervening impossibility).” For example, Aman contract with Raj (a
singer) to perform in the auditorium on christmas but on the day of the
performance Raj gets injured and cannot perform. The contract becomes void. The
third paragraph of Section 56 says that “If one ensuring timely to do something
that he knew, or could have known with due care, was impossible or unlawful, and
the promisee did not know, the promisor must pay the promisee for any damage
that the promisee suffers as a result of the contract's non-performance.” For
example, X contracts to engage Y, being already engaged to Z and being forbidden
by the law. X must compensate to Y for the loss caused to her by the non-
performance of his promise. In the case of Paradine v Jane it was concluded that
“Events that occur later should not have an impact on a contract that has already
been signed.” After this in the case of Taylor v Caldwell it was held that “the rule
mentioned above is only applicable when the contract is positive and
unconditional, and not subject to any stated or inferred conditions.” The main rule
of contract law is that both parties to a contract must fulfil their contractual
responsibilities, and in the event of a breach, the violating party must pay the other
for the losses inflicted. This criterion is broken only in the case of the frustration
doctrine. The doctrine of frustration is concerned with the inability of contract
execution. It signifies that a contract cannot be carried out due to an event beyond
the parties' control. The fulfilment of such a contract is frustrated, which means it
becomes difficult, impossible, or even unlawful. Contract dissatisfaction can result
from any unplanned, impossible occurrences or events beyond the control of the
contracting party.
IMPOSSIBILTIY OF THE PERFORMANCE NOT AS A DEFENCE
Impossibility of the performance cannot be used as a defence in the following
circumstances
1. If the person who signed the contract is himself / herself responsible for it’s
impossibility.
2. The occurrence of the problem is not severe enough for it’s impossibility.
3. The problem could be detected or expected, that is it was foreseeable.
The person responsible for his own actions which leads to the impossibility of the
performance cannot use Impossibility of the performance as a defence. For
example, A contracts with B to deliver the goods to him on 10th October and due
to A’s negligence he cannot deliver the goods on time B suffered the loss. In this
case, A cannot use the defence of Impossibility of the performance because he
himself was responsible for his actions.
When the occurrence is not severe enough, then the defence cannot be used. For
example, under a contract the cost of the substituent increases by a very small
amount and still can be enforceable, then the defence cannot be used.
If the impossibility is foreseeable, the defence of Impossibility of the performance
cannot be used. For example, A contracts with B a carpenter to paint his house on
10th October, B knowingly that he won’t be available on that day due to his
appointment with the doctor could be at the same day signs the contract. Now in
this case B cannot use Impossibility of the performance as a defence as it was
known to him that He may have to visit the doctor on the same day.
CONCLUSION
Impossibilty of the performance is a defence available in the cases when an act is
impossible to do either before or after making a contract. Compensation in this is
only available in the cases when a person who made contract knew before that it
will be impossible to perform or the person who made
the contract is himself/herself is solely responsible for his actions. An examination
of instances involving the impossibility doctrine reveals that the courts must have a
better understanding of the necessity to apply a more realistic foreseeability test to
commercial contract scenarios. The idea that a more realistic test will allow the
theory of impossibility to be abused is baseless. To avoid misuse, the bounds of
good faith and reasonableness are sufficient. The failure of the court to provide
relief to a party in the proper case is not justified by the necessity to establish
certainty in the law or the simple administration of the doctrine.
BY: KRISHITA BAJAJ
Comments
Post a Comment