§§ 306 sq. BGB: evaluation
This ultimately leaves us with the question whether the solution adopted by the BGB is not only theoretically and conceptually but also practically satisfactory. That question is usually answered in the negative.
Ever since Ernst Rabel launched his spirited attack on §§ 306 sq. BGB,[3511] these rules have been regarded as unsound and unfortunate.[3512] Neither logic nor policy compels a legal system to declare contracts, the performance of which is impossible, as void. It is obvious, of course, that the impossible performance as such cannot be rendered; but there is nothing inherently illogical in making a person pay damages for failure to do what he has undertaken to do. A claim for merely the negative interest (as provided for in § 307) is often insufficient. A contract of sale, for instance, induces in the purchaser a reasonable[3513] reliance that he will in due course receive the promised object; if performance turns out to have been impossible from the outset, he can therefore expect to be put in the position he would have been in had the contract been properly carried out (as opposed to the position he would have been in had he not relied upon the validity of the contract). Textbooks and commentaries are therefore full of exhortations to apply § 306 BGB restrictively and to try to avoid the harshness inherent in the unequivocal verdict of invalidity wherever possible. Occasionally, for instance, the undertaking of a specific guarantee is read into the contract, with the effect that the risk of initial impossibility of performance is shifted to the person who has promised such performance. This was the solution adopted in an oft-quoted decision[3514] of the Regional Appeal Court of Hamburg.[3515] Here, 1 000 boxes of new potatoes from the Canary Islands "aboard S.S. Thekla Bohien afloat" had been sold. As it turned out, however, only 106 boxes had been loaded. We are dealing here with a case of initial objective impossibility, since the specific goods that had been sold did not in fact exist.[3516] Nevertheless, the court did not regard the sale as void, but awarded damages for non-performance to the disappointed purchaser. Reason:"... in the sale of a cargo described as 'afloat' merchants take the contractual declaration of the vendor to be a warranty or the undertaking of a guarantee that the cargo has been loaded on the named vessel."13"
In the end, therefore, the real question seems to be which of the contracting parties should carry the risk of the possibility of performance; and this question can often be answered by a proper construction of the contract.140 English courts, unhampered by an "impossibilium nulla obligatio est" dogma, have often been able to achieve satisfactory results by looking to what the parties might have contemplated.141 Apart from that, it is often stated that a contract may be void if both parties believe that the contract is capable of being performed when this is not the case.142 The operative feature here, however, is common mistake, not initial impossibility per se.
III.
More on the topic §§ 306 sq. BGB: evaluation:
- The attitude adopted by the BGB
- The flexible rule of the BGB
- 1. §§ 116,117,118,122 BGB
- Evaluation
- Evaluation
- Evaluation
- Evaluation
- Evaluation
- Evaluation
- Evaluation
- Evaluation
- Evaluation of the oral formality