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Reasonable foresight is a very vague and elusive term. It is true that a court frequently is called upon to pronounce upon the state of a man's mind (which, as we have been told, is as much a question of fact as the state of his digestion), for instance, in cases where express malice is alleged to rebut a plea of qualified privilege, but it is usually possible in such cases to draw inferences from past or contemporaneous acts or words of the parties; it is a very much more difficult task to say of a given person or of persons similarly situated and at a given point of time whether they could reasonably have foreseen a subsequent event, for, as Chief Justice Brian said: 'It is common learning that the thought of a man is not triable, for the Devil has not knowledge of man's thoughts,' Year Book, 17 Edw. IV, 2, pl. 2, cited by Lord Macnaghten in Keighley, Maxted & Co.v. Durant?, when refusing to extend the doctrine of ratification. Indeed, we might adopt Lord Macnaghten's words in that case. 'It is, I think, a well established principle in English law that civil obligations are not to be created by, or founded upon, undisclosed intentions,' or, let us add, anticipations.

These general statements upon the present state of the law of supervening impossibility are, however, not without certain limitations and reservations, and it is worth while seeking for these in the three House of Lords cases and in decisions of inferior courts not inconsistent with or overruled by them.

(a) Mere commercial impossibility or difficulty in obtaining goods, not specific goods, arising from some unforeseen cause, will not excuse a vendor from performing his contract.

Thus in Blackburn Bobbin Co. v. T. W. Allen & Sons, a pre-war vendor of Finland birch timber found it impossible, owing to the disorganization by war of the normal mode of shipping timber direct from Finland to England, to deliver any such timber to his purchaser, who neither knew nor cared what the normal mode of shipment was. The Court of Appeal refused to hold 'that the continuance of the normal mode of shipping the timber from Finland was a matter which both parties contemplated as necessary for the fulfilment of the 1 [1901) A. C. at p. 247.

[1918] 2 K. B. 467.

contract,' and held the vendor to his bargain. The contract contained no war or force majeure clausel.

(6) Impossibility which only affects a part of the thing contracted to be done, although an important part, will not discharge the contract, although the impossibility and its cause would otherwise satisfy the required test and have that effect.

Thus, in Leiston Gas Co. v. Leiston-cum-Sizewell Urban District Council, which was decided by the Court of Appeal after Horlock's case, and before Tamplin's case, in the House of Lords, the interruption of the contract for the supply of gas and the supply and maintenance of lamps to burn the gas was only partial, although in consequence of the order of the competent military authority eventually no lamps were lighted at all. The obligation to maintain the lamps remained, and the Court of Appeal did not hesitate to confirm the decision of Low J., and hold the defendant Council liable for the quarterly instalments due under their five years' contract. The decision rests partly on the Taylor v. Caldwell line of cases, partly on Jackson v. Union Marine Insurance Co., and partly on the judgment of Lord Wrenbury in Horlock's case. 'Part of the performance of the contract had become unlawful, but another part of the contract, which cannot be regarded as a trivial part, was lawful and could be performed3.'

Presumably, however, if the contract was severable, part might be discharged and part preserved.

(c) 'Mere increased cost of performance, unless to an enormous and extravagant extent, does not make it impossible. A man is not prevented from performing by economic unprofitableness unless the pecuniary burden is so great as to approximate to physical prevention.'

The main part of this proposition is supported by such

i See also Associated Portland Cement Manufacturers v. William Cory & Son (1915) 31 T. L. R. 442; Greenway v. Jones (1915) 32 T. L. R. 184.

2 (1916] 2 K. B. 428 (C. A.); followed in Wycombe, &c. Co. v. Chipping Wycombe Corporation (1917) 33 T. L. R. 489.

3 Compare Herne Bay Steamboat Company v. Hutton, supra.
4 Pre-War Contract Committee's Report, s. 10 (Cd. 8975 of 1918).

cases as Bolckow, Vaughan & Co. v. Compania Minera & c.1, Hulton v. Chadwick?, Tennants v. Wilsons, and Blythe v. Richards4, although the judgments in some of these cases depend upon the construction of special clauses. That mere economic unprofitableness affords no excuse for non-performance has only to be stated, but are we justified in making the qualification above suggested ? This question frequently arises in cases of shortage of supply arising from the closing of the usual source, or some of the usual sources, of supply. A vendor is thereupon only able to obtain a small proportion of the quantity necessary to satisfy all his commitments. Any one of them he could fulfil, and therefore to any one customer who presses him he cannot plead that he has been prevented from obtaining the quantity due under contract to that customer. What is he to do? Is he to concentrate on one contract and fail to perform all the rest, or is he to ration his customers and so break all his contracts ? In such a case the House of Lords, construing a condition which excepted 'any contingencies... preventing or hindering the manufacture or delivery of the article,' took the business-like point of view that the vendor under this contract was entitled to rely on the condition although 'by interrupting his whole course of trade' and by concentrating his entire business on this particular contract he could have satisfied it 5.

(d) A temporary impossibility which is removed within a reasonable time cannot be used to snap a discharge of the contract. Although a contract involving trading with the enemy becomes ipso facto illegal upon the outbreak of war, there are many other contracts not of that nature which may be temporarily interrupted by causes which before long cease to operate. At any rate where the contract fixes no time limit compliance with which is prevented by the interruption, a momentary impossibility which is removed within a reasonable time does not operate to discharge the contract. The court will not allow

1 (1916) 33 T. L. R. III.
2 (1918) 34 T. L. R. 230 (C. A.); affirmed (1919) 35 T. L. R. 620.
3 (1917] A. C. 495.

4 (1916) 114 L. T. 753. 5 Tennants v. Wilson (supra). Compare also Hulton v. Chadwick (supra). 1 [1916] 1 K. B. 402 (C. A.). 2 (1872) Geipel v. Smith, L. R. 7 Q. B. at pp. 414-5. 3 [1916] 2 A. C. at p. 411. 4 (1918] A. C. at p. 139. 6 Tamplin's case (supra); Andrew Millar & Co. v. Taylor & Co. (supra). 2 Cd. 8975 of 1918, s. 3.

one party in such circumstances to snap at an opportunity of repudiating a contract, as in Andrew Millar & Co.v. Taylor & Co.', where a pre-war vendor had contracted to manufacture within a reasonable time confectionery for the purchasers to export to Morocco, and a prohibition of export was issued by the British Government on the 5th of August and removed on the 20th of August, 1914. At the same time, wars are notoriously longer than the belligerents expect, and this decision must be regarded rather as a warning against 'snap' repudiations than evidence of any inclination on the part of the law to minimize the probable duration of a war. Indeed, there are numerous dicta to the contrary. Lush J. said?, ‘A state of war must be presumed to be likely to continue so long, and so to disturb the commerce of merchants, as to defeat and destroy the object of a commercial adventure like this' (a voyage charter-party). Viscount Haldane says, “It is impossible for any court to speculate as to the duration of the war'; and Lord Parmoor says“, “There is no certainty of the time of the duration of the war of which judicial cognizance can be taken.' Too much reliance cannot be placed upon Andrew Millar & Co. v. Taylor & Co.1

As was to be expected, a number of the cases of impossibility of performance during the war have arisen from the act of the Executive either under statute passed before or after the date of the contract or in the exercise of the royal prerogative. These cases have not presented much difficulty, as the cause has usually been one which, if foreseen, would have been regarded by the parties as discharging the contract, and the effect was usually, but not always', sufficiently drastic to destroy the basis of the contract and discharge it. Such cases are, however, not so much instances of supervening impossibility as of supervening illegality. For instance, the Executive lawfully requisitions specific goods which are specifically the subject of an agreement to sell, and the vendor has no legal alternative but to obey the requisition and disappoint his purchaser 1,

It should also be noted that although most of the war cases we have dealt with have arisen upon pre-war contracts, similar principles apply to contracts made during the war which have become subject to dislocation in the course of the war. The Pre-War Contract Committee's Report points out that the war did not create its more serious effect on trade, especially in regard to freights, until the spring of 1915, while no general deficiency of labour was experienced till later in that year.' 'Peace hath her' surprises 'no less renowned than war' but it will not be easy for a party to a contract made during the war to prove that he did not foresee the possibility of the war coming to an end and contracted on the assumption of its continuance, though at times that end did seem a long way off.

It is now customary, in matters admitting of legitimate difference of opinion, to propound what is called an 'acid test,' and then to proscribe those who are unable to accept it. May we with diffidence and without any proscription suggest the following? Two conditions must co-exist before supervening impossibility can excuse performance or further performance: (1) the cause must be such that the court will assume that if it had been mentioned to the parties during their negotiations for the contract, they would both have said, 'Oh, of course, if that happened, it would knock the bottom out of our bargain3 '; (2) the effect of the cause must amount to real (but not necessarily physical) prevention of the performance of the whole or substantially the whole of at least one party's obligation, and must not merely mean that its performance will take place under conditions somewhat different from those contemplated.

Before concluding, further reference should be made to the

1 Shipton & Harrison's Arbitration (1915] 3 K. B. 676; Hulton v. Chadwick (supra).

3 Compare an old opinion expressed in Doctor and Student, Dialogue II, ch. xxiv: ‘And, after some doctors, a man may be excused of such a promise in conscience by casualty that cometh after the promise, if it be so, that if he had known of the casualty at the making of the promise he would not have made it.'

MON.

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