Supervening impossibility in modern German law
(1) If performance becomes impossible owing to circumstances for which the debtor is not responsible, his obligation falls away.192 This rule has taken the place of the old tenet of "debitor speciei liberatur casuali interim rei"m.
It is formulated more broadly than the latter,194 since it refers not only to obligationes ad dandum but also to obligationes ad faciendum. Obligationes ad faciendum, as will be™ Die Unmoglichkeit der Lei stung in ihrem Eittfliiss aufohligatorische Verhältnisse (18531.
IM7 On the roots of his ideas in the tradition of both the ius commune and (particularly") the law of the Age of Reason, see Wollschlager, Unmoglidikeitstehre, pp. 75 sqq., 118 sqq. On the Prussian General Land Law, which for the first time attributed central importance to the concept of impossibility within the law relating to breach of contract, see Wollschlager, pp. 106 sqq.
isa por t]As alternative cf. Lauterbach, as discussed by Wollschlager, Untnoglichkeitslehre, pp. 72 sq.
IH9 Cf. the categories listed and discussed by Wollschlager, Unmoglichkeitslehre, pp. 125 sqq.
™ Windscheid/Kipp, §§ 264, 315, 360.
B Wollschlager, Unmoglichkeitslehre, pp. 167 sqq.
192 § 275 BGB.
¹ Cf. supra, p. 809.
144 And art. 1302 code civil.
remembered, were in any case not enforceable in forma specifica under the ins commune[4166] ("nemo potest praecise cogi ad factum" ).
(2) There is an exception in cases where the debtor is obliged to pay money or to deliver fungible things: the debtor is responsible for his inability to deliver, even though no fault is attributable to him.[4167] This reflects the old maxim "genus perire non potest" of the ius commune.[4168]
(3) If the performance due by one party under a reciprocal contract becomes impossible because of circumstances for which neither he nor the other party is responsible, he loses his right to demand counterperformance.[4169] [4170] [4171] This gives expression to what has been termed the "conditional synallagma":iyy obligation and counterobligation share the same fate; if one of them falls away, so does the other. Both obligations are interdependent and they should therefore not be looked at in isolation—the consequence of the fact that the one party has promised to perform in order to receive the counterperformance ("do ut des").20u § 323 BGB contains the general risk rule developed during the age of the law of reason and embodied, for the first time, in §§ 364 I 5 of the Prussian General Land Law.[4172] It is in conflict with the older ius commune, which tended to place the risk of casus in some of the most important bilateral contracts on the creditor;[4173]"2 thus, it is the purchaser who has to pay the purchase price, even though he does not receive the merx, and the customer who is bound to pay the remuneration agreed upon, although the promised work has been destroyed. This was, of course, the result of the Roman periculum emptoris, locatoris, etc.[4174] (4) Where the performance becomes impossible because of a circumstance for which the debtor is responsible, the creditor may demand compensation for non-performance;[4175] alternatively, if the impossibility relates to a synallagmatic obligation, he may withdraw from the contract.[4176] The right of withdrawal from the contract is essentially the same as in the case of mora debitoris.[4177] [4178] The emphasis on (supervening) impossibility is the influence of Mommsen/Windscheid. Particularly odd, or even eccentric, appears to be the fact that supervening impossibility and mora debitoris"07 are the only two forms of breach of contract recognized by the BGB. Furthermore, a debtor is not only bound to perform at all and to perform at the right time; there are further obligations arising from the contract with which he can be expected to comply. Most importantly, his performance must not be deficient. Thus, the vendor of poisonous horsefodder should be liable for damages if the purchaser's horses die as a result of being exposed to such an unsuitable diet.[4179] So should the vendor of defective fuel which damages the engines in the purchaser's vehicles.[4180] Liability should also arise, for instance, where the damage was caused as a result of inadequate information or incorrect instructions supplied by the vendor of some piece of equipment.[4181] As early as 1902 (two years after the BGB had come into effect) Hermann Staub[4182] discovered that for these and similar cases the BGB contained a "giant gap". Concentrating solely on delay of performance and impossibility, the legislator had, apparently, forgotten to deal with what Staub termed "positive Vertragsverletzungen" (positive breach of contract; "positiewe wan- prestasie" in the terminology of De Wet en Yeats).[4183] The courts immediately set about filling this gap and today "positive Vertragsverletzung" is generally recognized as a judge-made institution extra legem.[4184] As with the other forms of breach of contract, it entitles the creditor to claim damages or (under certain circumstances)[4185] to rescind the contract. As a matter of fact, however, the BGB did not contain the blatant defect that Staub claimed to have "discovered".[4186] In Mommsen's impossibility doctrine, cases of malperformance featured in the guise of partial impossibility as to the quality of the object of performance.[4187] If the vendor delivers horsefodder that is poisonous, he has only partially complied with his contractual duties: he has made delivery, but what he has delivered is not suitable for use. The type of performance he was bound to render (delivery of horsefodder at the right time and of the right quality) has thus become impossible. The development of the doctrine of "positive Vertragsverletzung" therefore merely demonstrates a lack of sympathy and understanding for Mommsen's abstract conceptualism that still underlies the provisions of the BGB relating to breach of contract. Apart from that, however, it provides an example of the scope of judicial law-making, even under a codified system. (5) Finally, it must be kept in mind that for some contracts the BGB provides a number of special rules and remedies dealing with the problem of defective performance. They take precedence over the general rules relating to breach of contract (lex specialis derogat legi generali). Particularly important are the rights of a customer under a contract for work and of a purchaser to demand annulment of the contract or reduction of the remuneration/purchase price.[4188] These remedies are obviously either based on or inspired by the aedilitian remedies of Roman law. 6.
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