Pandectist doctrine
Based, as they were, on freedom of choice and of contract, these views could not fail to commend themselves to the pandectists. Man can will only what lies within the reach of his volition.
The law of contract is based on the freedom of will. Ergo: a contract directed at something impossible must be invalid. What remained to be done was to test this result against the sources of Roman law (and then to claim that it was derived from them). For while Savigny and his followers (the so-called historical school of law) had once set out to return to the truth and purity of Roman law (as contained in the pages of the Corpus Juris rather than in post-reception legal literature), it was nevertheless a somewhat idealized version of it which they had in mind; and in the course of the 19th century, the historical approach was overlaid and finally replaced by the exaggerated dogmatism of theorizing law professors, who attempted to bring the sources into some sort of systematical and conceptual shape, so as to fit in with their scientific calculus.The man to do the job in this specific case was Friedrich Mommsen.[3495] In D. 50, 17, 185 he found the necessary and authoritative confirmation of the fact that a contract is void if at the time of its inception performance is impossible. For Mommsen, this was a principle of universal validity. Irritating obstacles (in the form of texts such as D. 18, 1, 70, D. 18, 1, 62, 1 or Inst. Ill, 23, 5) were rather forcibly removed (for instance, by implying dolus, or 'culpa lata\ on the part of the vendor).[3496] On the other hand, Mommsen recognized that the problem had never been approached by the Roman lawyers from the point of view of the individual debtor's facultas dandi (or praestandi) and that application of "impossibilium nulla obligatio est" therefore had to be limited to cases of objective impossibility.[3497] Mommsen's exposition satisfied the contemporary desire for neat and clear-cut principles. Within a short time, it gained wide-spread support[3498] and duly received the highest possible accolade in the world of late 19th-century pandectism: it was adopted (and thus virtually canonized) by Bernhard Windscheid in his Lehrbuch des Pandektenrechts.[3499]* Its modern statutory version is § 306 BGB.
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