CHARLES FRIED: The old legal terminology refers
to frustration and impossibility.
In Krell v. Henry, the purpose of the contract
was frustrated by the king's illness.
In the shipping company case, the shipping was not impossible.
The more modern language speaks of commercial impracticability.
The shipping company could, at huge expense,
have put the cargo aboard a fleet of airplanes and flown it to Bombay,
but that, though not impossible, would be
what the law calls commercially impracticable.
It's a somewhat vague notion, and for that reason, not entirely satisfactory.
At the end of this unit I'll tell you what
people do in the face of this uncertainty and vagueness.
But let me first give you the extreme cases
by telling you about what looks like cases of real impossibility.
After the extreme we'll move back into the questionable, the borderline cases.
The granddaddy of the cases that I have in mind
was a mid-19th century case from England.
A promoter had made a contract with the owner of a musical
to put on a series of concerts in June, July, and August.
Before the first of these concerts, the music hall burned down
and the promoter sued.
The parties just hadn't thought about that possibility,
and so the court ruled that it was the unexpressed assumption
that the hall would continue to exist.
It was a basis of the contract, and since the hall had burned down,
the deal was off.
There are many variations on this theme.
Remember Joanna Wagner (Note: This case appears in Specific Performance)?
What if, instead of jumping ship from Lumley to Gye, she had gotten sick
and was unable to sing for the whole season?
And in general, when there's a contract with a sports figure
to play for a number of seasons and a very high salary,
what if, as a result of injury or death, the player
is unable to play or a movie star to perform?
And that can get quite serious.
The movie can be half shot, at great expense, and then have to be abandoned.
Or a company hires a star chief executive, or engineer or inventor,
and she gets sick or dies.
In all of these cases, the default rule-- that is to say,
the rule that obtains if the parties had said nothing
about the possibility of the concert hall burning down
or the performing getting sick or dying, or as a result of a war or government
regulation-- the performance of one party becomes illegal or impossible.
In all of these cases, the default rule is the same
as in the burnt down concert hall- the deal is off.