Friedrich Mommsen's impossibility doctrine
Non-German readers will be wondering why this point needs emphasizing. The reason is that in the course of the 19th century the whole perspective changed considerably. This was due, essentially, to a book by Friedrich Mommsen,186 brother ot the famous historian and Nobel prize winner, Theodor.
He187 superimposed a concept of "impossibility of performance" on the sources, which covered all cases in which the debtor was unable to perform: non impleat quia non potest (as opposed to quia non vult).188 Impossibility became a very broad conceptual abstraction, a common systematic denominator for a whole range of situations. Thus, Mommsen distinguished, inter alia, between initial and supervening, natural and legal, absolute and relative, objective and subjective, permanent and temporary, complete and partial, apparent and "real" impossibility.189 The legal consequences in a given situation depended, in the first place, on its appropriate niche within this typology of "impossibilities". It was one of the consequences of this new approach that the category of "supervening impossibility" became the essential dogmatic cornerstone of the law relating to breach of contract.Mommsen's book is characterized by that abstract and excessive conceptualism which is so typical of pandectist writing. It forced the sources into a scheme which was alien to the Roman lawyers and which, today, fails to appeal to legal historians and modern lawyers alike. It would probably have been largely forgotten, had it not managed to impress the most influential of the pandectists, Bernhard Windscheid190and, through him, the fathers of the BGB.lyi If we look into the German codification, we find the following rules:
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More on the topic Friedrich Mommsen's impossibility doctrine:
- The scholastic doctrine of causation
- The concept of impossibility
- Initial impossibility of stipulations
- The notion of impossibility under the ins commune
- THE DOCTRINE OF CAUSA
- Pandectist doctrine
- Pacta sunt servanda and classical contract doctrine
- The development of the modern error doctrine
- Initial impossibility and contracts of sale
- The common law and the doctrine of binding precedent
- INITIAL IMPOSSIBILITY
- IMPOSSIBILITY OF PERFORMANCE AND BREACH OF CONTRACT
- Initial Impossibility of Multiple Pledges
- Laclau and Mouffe: the impossibility of the state
- Supervening impossibility in modern German law
- 'Positive' Breach of Contract[252]
- ERRATA ET ADDENDA
- The approach of the natural lawyers