Impossibilium nulla obligatio est under the (earlier) ius commune
How, under these circumstances, could the development of the ius commune lead up to general statements such as the one pronounced by Solomon ACJ in Peters, Flamman & Co. v. Kokstad Municipality: "By the Civil Law a contract is void if at the time of its inception its performance is impossible"?[3483] Glossators, commentators and writers up to the period of the usus modernus pandectarum[3484] essentially stuck to the pattern which they found in the Roman sources: they differentiated between sale and stipulation.
Only the latter type of transaction was invalid due to impossibilium nulla est obligatio. In actual practice the maxim was therefore ultimately bound to lose its field of application; with the acceptance of ex nudo pacto oritur actio, the stipulation was, after all, no longer of any significance as a special type of contract.105 Savigny (one of the last authors who confined the Celsinian rule to stipulations) came to the conclusion, that contracts of sale and similar transactions were valid, except where the purchaser had known about the initial objective impossibility.106 This view was based on sources such as Mod. D. 18, 1, 62, 1 and Lie. Ruf. D. 18, 1, 70, and meant that the vendor (even if he had been nesciens) was liable to pay "quod sua [i.e. the purchaser] interest deceptum non esse" (we would say: the positive interest). In this instance, however, Savigny did not prevail. Hugo Donellus had made the first attempt to elevate the crisp and handy maxim contained in D. 50, 17, 185 to the status of a principle of universal applicability.[3485] [3486] [3487] If the object of the transaction did not exist, every kind of contract, in his opinion had to be regarded as invalid; for, irrespective of whether a stipulation was involved or not, it would be absurd to allow one party to demand the impossible from the other. As far as the contract of sale was concerned, Donellus could refer to Paul. D. 18, 1, 57. Only in certain instances (cf. particularly Mod. D. 18, 1, 62, 1) did the contract have a limited form of validity. But these were narrowly confined exceptions to the general rule of "impossibilium nulla est obligatio".6.
More on the topic Impossibilium nulla obligatio est under the (earlier) ius commune:
- 1. Impossibilium mil la obligatio est
- 1. The older ius commune
- The regime of the ius commune: all or nothing
- Requirements of mora debitoris (ius commune)
- The compromissum of the ius commune
- Conventio, pactum and contractus under the ius commune
- III. FURTUM IN THE IUS COMMUNE
- Consequences ofmora debitoris (ius commune)
- Donation under the ius commune and in modern law
- THE ROMAN CONTRACT OF STIPULATION UNDER THE IUS COMMUNE