The notion of impossibility under the ins commune
What has been said so far does not, of course, mean that the notion of impossibility of performance was unknown or entirely irrelevant. First of all there was, as we have seen, the problem of initial impossibility of performance (impossibilium nulla est obligatio).[4161] Secondly, the trend towards specific performance must be kept in mind.
Wherever the creditor (contrary to the classical Roman omnis condemnatio pecuni- aria) was given the right to enforce performance in forma specifica,[4162] an exception had to be recognized for cases where such performance had become impossible. If the object that was to be transferred had been destroyed, the creditor could, as a matter of course, claim compensation only in money.[4163] And thirdly: where the object of performance had been accidentally destroyed and where the resulting impossibility was therefore not attributable to the debtor, the latter was seen to be released from his obligation. "Debitor speciei liberatur casuali interitu rei" became the general principle of the ius commune:[4164] an extension to bonae fidei contracts (especially to the contract of sale) of D. 46, 3, 107, a statement by Pomponius relating to verborum obligationes.[4165] Nevertheless, however, neither the interims rei nor the concept of impossibility featured as a general systematic category in the law relating to breach of contract. If the object of performance was accidentally destroyed, the debtor's obligation fell away. If the debtor was responsible for the destruction, he was liable for breach of contract; but he was liable in the same way and according to the same principles as wherever else he had failed to comply with his contractual duties. Culpa (with its various grades) and casus remained the central categories for the determination of the debtor's liability, not the specific type of breach of contract the debtor had committed.4.
More on the topic The notion of impossibility under the ins commune:
- The position under the ins commune
- The boni mores and the ins commune
- The distinctions of the ins commune
- Breach of contract under the ins commune
- Actio empti and aedilitian remedies in the ins commune
- The concept of impossibility
- Initial impossibility of stipulations
- Friedrich Mommsen's impossibility doctrine
- The notion of an implied condition (natural law)
- Ex nudo pacto oritur actio and the notion of causa
- Initial impossibility and contracts of sale
- Supervening impossibility in modern German law
- INITIAL IMPOSSIBILITY
- In the previous paragraphs, frequent references emphasized the notion of possession as a key to the acquisition of the right of ownership.
- IMPOSSIBILITY OF PERFORMANCE AND BREACH OF CONTRACT