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cases as Bolckow, Vaughan & Co. v. Compania Minera &c.?, 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 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

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

1

2

(1916) 114 L. T. 6 Tennants v. Wilson (supra). Compare also Hulton v. Chadwick (supra).

753.

one party in such circumstances to snap at an opportunity of repudiating a contract, as in Andrew Millar & Co.v. Taylor & Co.1, 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 3, '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 [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). 1 Shipton & Harrison's Arbitration (1915] 3 K. B. 676; Hulton v. Chadwick (supra).

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 Report of the Pre-War Contract Committeel appointed by the Board of Trade with Lord Buckmaster as chairman. Their terms of reference were 'to consider and report on the position of British manufacturers and merchants after the War in respect of contracts entered into by them prior to the War with persons or companies in the United Kingdom or in Allied or neutral countries, the fulfilment of which has been prevented or impeded by the War, and as to the measures, if

2 Cd. 8975 of 1918, s. 3.

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.'

any, which are necessary or desirable in this respect.' Two passages in the Report at least are relevant to our subject; one (section 11) is a summary of the emergency legislation already passed during the war enabling the court in certain very limited classes of cases to grant relief from serious hardship by varying, suspending, or annulling contracts. From the other (section 10), which contains a statement of the position under the common law, we have already made some extracts.

The Report is dated January 12, 1918, i.e. after the three decisions in the House of Lords previously discussed in this chapter.

The emergency legislation only deals with a very small part of the problem, and the general conclusions of the Committee are not in favour of further legislative interference. Indeed, no one can read this Report without being impressed with two facts; one is the 'sweet reasonableness,' the non-litigious character, of the English business man; for instance, 'a majority (and probably a large majority) of business men in this country have acted reasonably, have not insisted on their strict rights against those who were in difficulties, and have made a fair compromise.' The other fact is the adequacy of the common law, under such disturbing conditions and with very little aid from the legislature, to deal with the cases in which a decision has been asked for. As already indicated, there is just a danger that in seeking to rise to the occasion the common law may have developed a somewhat lax tendency which needs to be carefully watched in the future; for, as one of the witnesses before the Pre-War Contract Committee puts it, “the essential basis of all trade is the right to rely upon contracts.'

1 Cd. 8975 of 1918.

CHAPTER VI

"TRADING WITH THE ENEMY' AND SOME PARTICULAR CONTRACTS (AFFREIGHTMENT, AGENCY, AND COMPANIES)

We have made an attempt in the two preceding chapters to state the general principles applicable to the effect of war upon contracts and now, without adhering to our classification of contracts according to the status of the parties to them, it is proposed to review the application of those principles to some of the more important kinds of contract. We are not attempting an exhaustive digest of decisions but rather to draw attention to some of the points at which the events of the past five years have made the greatest impression?.

We frequently meet the expression “trading with the enemy.' Clearly, it does not indicate any particular kind of contract. It is a generic term, chiefly used in considering whether a

1 It is outside the scope of this volume to consider the effect of the Treaty of Peace with Germany signed on the 28th June, 1919, upon the various topics dealt with in these Essays and Lectures. Its relevant provisions are far from being lucid either in their drafting or their arrangement, and until the Treaty comes into force and the British Government takes the necessary powers for the enforcement of these provisions (which the Treaty of Peace Act, 1919, by means of a blank cheque of the D.O.R.A. type enables them to do), it will not be possible to form any serious estimate of the violence which they may do to the principles of the common law. The issues of the Law Times dated 12th, 19th and 26th July and 2nd August contain a useful summary of those provisions which principally affect our private law-Debts, Property, Rights, and Interests, Contracts, Prescriptions, and Judgments, Industrial, Literary, and Artistic Property, and the Mixed Tribunal which is to administer the provisions. The general scheme appears to be that the settling up between the nationals of the High Contracting Parties shall be achieved mainly by administrative procedure and that the ordinary municipal courts of law will retire into the background. The latter have however an awkward way of asserting their position and are jealous of rivals. Boni judicis est ampliare jurisdictionem. The Treaty provisions above-mentioned relate only to Germany, and it has been officially announced by the Board of Trade (7th August, 1919) that it is not intended to apply the debtcollecting clearing-house scheme to Austria, Turkey, and Bulgaria.

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