Breach of contract in English law

"[Wjhen [al party by his own contract creates a duty or charge upon himself, he is bound to make it good,... notwithstanding any accident by inevitable necessity";^22c' if he had not wanted to be bound under those circumstances, he should have specifically excluded his liability. This does not mean, however, that without an express exemption clause the debtor's liability is unlimited. Determination of its scope is a matter of the proper interpretation of the contract. Or, according to art. 74 of the Uniform Law for International Sales of Goods: the debtor continues to be bound unless he is able to prove that the non-performance is attributable to circumstances which, according to the common intentions at the time of conclusion of the contract, he did not have to take into account, to avoid or to overcome. Thus, in the leading case of Taylor v. Caldwell,^{[4198] [4199]} a contract concerning the hire of a music hall for the presentation of a series of concerts was held to contain an "implied condition" that

"the parties shall be excused in case...

The German lawyer would refer to supervening impossibility.²²⁵ The somewhat fictitious nature of the construction chosen in Taylor v. Caldwell becomes apparent when one reads what Blackburn J says at the outset of his opinion—namely, that "[t]he parties when framing [their] agreement evidently had not present to their minds the possibility of such a disaster".²²⁹ Only a few lines later, however, we see him express his confidence that "[the] implication tends to further the great object of making the legal construction such as to fulfil the intention of those who entered into the contract".²³" The inconsistency is obvious.²³¹ But somehow or other the desired legal result had to be connected to the intention of the parties and the most convenient, and fashionable, device that could be used in order to achieve that was the implied condition.

The basic inspiration came from Roman law, though, ironically, as in the case of the parallel rule of § 323 BGB, from the obligationes stricti iuris. For in Blackburn J's opinion we meet an old acquaintance. It is Pomp. D. 45, 1, 23 to which the judge refers for the proposition that a debtor corporis certi is freed from his obligation when there is no longer a corpus certum.²³² As so often,²³³ incidentally, Pothier's Traite

Murcott, (1942) 6 THRHR 169 sqq., 190 sqq. (very solid) and W. A. Ramsden, Supervening Impossibility of Performance in the South African Law of Contract (1985) (the only monograph on the topic).

Repudiation (as a form of breach of contract in anticipando; in German: "ErfiUhtngsver- weigemng'j has been taken over from English law (leading case: Hochster v. De la Tour (1853) 2 El & Bl 678) and is today generally accepted as a special type of breach of contract (even by Roman-Dutch "purists" such as De Wet en Yeats); c(.

²⁹ At 833.

²⁰ At 834.

³¹ "It is hard to sec how much further inconsistency is possible": A.W.B. Simpson, "Innovation in Nineteenth Century Contract Law". ('1975') 91 LQR 271.

® At 834.

*¹³ Cf. e.g. supra, pp. 336 sq.. pp. 611 sq.

des obligations²³⁴ provided the vital link for the transfer of the civilian doctrine into the fabric of the common law. Taylor v. Caldwell may be regarded as one of the roots of the modern English doctrine of frustration of contract, for the underlying idea of an "implied condition" soon came to be fused with that of a "frustration of adventure", as developed in a line of cases dealing with charterparties and their construction.'³⁵ By implying a condition that no event would occur that would defeat the object of the contract, the courts created an effective tool to bring about a just and fair solution, not only in cases of factual or legal impossibility but also where the foundation of the contract is affected by a supervening change of circumstances;²³⁶ it is thus the functional equivalent to the continental clausula rebus sic stantibus.²³⁷ "Viewed historically", writes Simpson,²³⁸ "[the doctrine of frustration] represents a curiously complex blend of common and civil law development, linked, inevitably, to the central doctrine of consensus by fiction." It was King Edward VII's indisposition on the day of his projected coronation that gave rise to a particularly interesting and famous set of cases.²³⁹

V.