The concept of impossibility

Before we answer this question, we must first of all attempt to define more precisely what is meant by "impossibility" in the present context. First of all, and most importantly, our discussion in this chapter refers only to initial (as opposed to supervening) impossibility.

What matters is whether at the time of conclusion of the contract performance was impossible or not. Apart from that, "impossibilium nulla obligatio est" covered only cases in which performance was objectively impossible;^[3454] if somebody had promised what he could not, but another person could in fact perform, the obligatio was not "nulla": "Si ab eo stipulatus sim, qui efficere non possit, cum alio possibile sit, iure factam obligationem Sabinus scribit."^[3455] Objective initial impossibility therefore comprised a large variety of situations: cases where the object of the contract cannot exist at all (the stipulation of a hippocentaurus),^[3456] where the object was no longer in rerum natura (the promise to deliver a slave who was already dead,^[3457] the sale of a house that had completely burnt down^[3458] or of an olive grove that had been devastated by a storm)^[3459] ^{^[3460] or where it was extra commercium (the sale of a res sacra or religiosa,^7y or of the campus Martius).^[3461] Transfer of ownership was also objectively impossible where the slave who had been stipulated for already belonged to the creditor^[3462] or turned out to be a homo liber.^[3463] If, on the other hand, what had been sold or promised did not belong to the vendor (or promisor) but to a third party, the obligation remained in any event unaffected: performance was not objectively impossible. In the case of a contract of sale, as we have seen, the vendor did not even have to transfer ownership, but merely vacua possessio; if he was evicted, the purchaser could bring the actio empti.^[3464] Finally, impossibilium nulla obligatio est could not be invoked where performance was merely difficult (as opposed to objectively impossible).
The Roman lawyers drew a fine distinction between impedimentum naturale and facultas dandi: the latter, as they saw it, was a question of personal convenience or inconvenience, but did not affect the content of the promise. Hence the general rule that "causa difficultatis ad incommodum promissoris, non ad impedimentum stipulatoris pertinet".^[3465] Performance was therefore not (objectively) impossible if the debtor had no money and was unable to find a lender or if the slave whom he was supposed to hand over in Rome was in fact in Ephesos.^[3466] What if the slave who had been sold turned out to be in the hands of the enemy? "... Octa venus magis putabat valere emptionem et stipulationem,... potius enim difficultatem in praestando co inesse, quam in natura, etiamsi officio indicis sustinenda esset eius praestatio, donee praestari possit. "^wf>
On the borderline, too, was a stipulation, made in Rome "hodie Carthagine dare spondes?"^[3467] ^{^[3468] Ships could sail fast, but to cover the distance from Rome to Carthage within less than 24 hours was not only difficult, but impossible. Hence, as a rule, such a stipulation was said to depend on impossibilem causam. Likewise, Justinian regarded as impossible the promise by a person on his deathbed to build a house.⁸¹¹}
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Source: Zimmermann R.. The Law of Obligations. Roman Foundations of the Civilian Tradition. Juta & Co, Ltd,1992. — 1241 p.. 1992

The concept of impossibility

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