clause enabling the Board's engineer to grant an extension of time in the event of the happening of numerous contingencies, such as 'difficulties, impediments, obstructions,' &c., none of which were regarded as fundamental enough to cover an act of the supreme authority. The Board thereupon began an action against their contractors, Dick, Kerr & Co., claiming that the contract was still in existence and binding, and had not been determined, and, relying largely upon Tamplin's case, urged that the object of their contract had neither been frustrated nor become physically impossible or commercially impracticable of completion. The House of Lords declined to accept this view. To do so meant, in their lordships' opinion, imposing upon the parties an entirely new contract, having regard to the dispersal of the plant and the uncertainty as regards labour and materials when the prohibition might cease. "The difference between the new contract and the old is quite as great as the difference between the two voyages in the case of Jackson v. Union Marine Insurance Co.1,' that is, 'the summer voyage which the parties contemplated,' and 'the winter voyage which the delay would have necessitated.'

'The real meaning and purport of such a contract,' says Lord Parmoor2, 'is that works shall be carried out at prices fixed with reference to the then outlook for cost of labour, plant, and material, spread over a defined limit of time, which could not fail to affect materially the figures inserted by any contractor in sending in his tender.' Bailey v. De Crespigny3, where an Act of Parliament 'repealed the covenant' not to build on certain land by enabling a railway company to acquire it by compulsory powers, arises naturally to the mind in such a case as that under discussion, but it does not carry us very far because the duration of the prohibition issued by the Minister of Munitions was obviously finite though uncertain.

We may perhaps summarize and contrast these three decisions of the House of Lords as follows:

(1) Horlock's case: a seaman's contract of service for a voyage not exceeding two years interrupted by hostile detention

1 Supra. 2 [1918] I A. C. at p. 138. 3 (1869) L. R. 4 Q. B. 180.

of ship and crew with no early prospect of release: held, contract discharged when further performance became impossible.

(2) Tamplin's case: a time charter-party for sixty months for certain purposes, and Admiralty requisition after two years for an entirely different purpose: held, in what was substantially an action by the shipowner for a declaration that the contract was determined, that the interruption was not enough to destroy the basis of the contract, which therefore continued in existence.

(3) Metropolitan Water Board's case: a contract for the construction of reservoirs over a period of six years: prohibition by act of the State of uncertain duration and official instructions for dispersal of plant: held, interruption was enough to discharge the contract, as to hold otherwise would be to impose upon the parties a new and totally different contract.

In all three cases the contract was partly executed.

There are probably few who would quarrel with the principles of law necessary to justify the decisions in these cases or who would assert that upon their facts it was impossible for reasonable men to arrive at the conclusions reached. There is, however, a danger inherent in a court where more than one decision is given. It must be very hard merely to concur. It is so much more interesting to deliver a judgment dealing with the points in question from a somewhat different angle. In so doing there is great danger of saying more than is necessary, and it is submitted that some of the language used in these cases is likely to lend colour to attempts to undermine the sanctity of contract and so, by aiming at being too business-like, to do the true interests of business a great disservice. For instance, Earl Loreburn in Tamplin's case says1:

'Ought we to imply a condition in the contract that an interruption such as this shall excuse the parties from further performance of it. I think not. I think they took their chance of lesser interruptions, and the condition I should imply goes no further than that they should be excused if substantially the whole contract became impossible of performance, or in other words impracticable, by some cause for which neither was responsible.'

1 [1916] 2 A. C. at p. 405.

Is it suggested that if in Taylor v. Caldwell the plaintiff had hired the defendant's Surrey Gardens for an entertainment to be given in the open air, and a deluge of rain had made the concerts 'impracticable,' the plaintiff would have been excused? Or again, if the death of the Queen had plunged the country into mourning and brought about an abandonment of all public entertainments?

The effect of these and other recent cases is summarized in a statement of the law adopted in the Report of the Pre-War Contract Committee1 dated January 12, 1918. The statement, which is based upon the advice of good legal authority and adopted by a committee on which the law was well represented, contains the following passage (part of section 10):

'Prima facie if a man binds himself by contract unconditionally to do that which turns out to be impossible, he will be held to his bargain and have to pay damages for his failure to perform. If, however, the impossibility arises from a cause that neither party can reasonably have contemplated when the contract was made, and as to which the terms of the contract make no provision, a man will not be so bound; the matter being unforeseen, he is not taken to have promised unconditionally nor, for the same reason, has he stipulated for any condition of excuse.'

These propositions are much in advance of the Coronation Seat rulings, very much in advance of Taylor v. Caldwell, and of course centuries removed from Paradine v. Jane2. In particular they should be contrasted with the remarks of Blackburn J. quoted in the opening paragraphs of this chapter. All mention of 'the foundation of the contract,' 'state of things going to the root of the contract,' and similar expressions have disappeared, and instead we are faced with a test of what could not reasonably be foreseen, or something equally hypothetical. Indeed, Earl Loreburn's dictum above quoted amounts to little if anything more than saying that there is an implied condition that the contract shall not become impossible by reason of some cause for which the obligor is not responsible.

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. Durant1, 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 2 [1918] 2 K. B. 467.

1 [1901] A. C. at p. 247.

contract,' and held the vendor to his bargain. The contract contained no war or force majeure clause1.

(b) 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 Council2, 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

1 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).