Question 2 OR (a)

Impossibility of performance as an excuse

5 marks

Time to write
About 10 minutes

From an older CBCS paper

Question

Question 2 OR (a) · 5 marks

For performance of a contract, impossibility of performance is not an excuse. Explain.

Reworded from the university paper; the task is the same. The original paper belongs to the University of Delhi. See DU's question bank.

Before you write

Read off the question and its marks

10 minfor 5 marks

Read from the question

  • ExplainA statement to explain: say what it means first, then build the answer around it.

Write it in this order

  1. Read; underline the asks; jot your points 1 min
  2. 1 Supervening impossibility 2 marks 4 min
  3. 2 Cases 2 marks 3 min
  4. 3 Conclusion 1 mark 1 min
  5. Check: every ask answered, key terms underlined 1 min

Short on time? Trim steps 1 and 2 evenly rather than skip one: each is capped at its own marks. End with step 3 in a line or two.

Try it first. About 10 minutes for 5 marks. Write it out, then open the solution.

Solution

Hover or tap a marked figure, like 72,000, to see how it is made and where else it appears.

Discussion. The statement, read as it stands, is not correct: impossibility of performance can excuse performance. Where performance becomes impossible or unlawful by an event after the contract is made, beyond the contemplation of the parties, the contract becomes void and the parties are discharged from further performance; this is subsequent or supervening impossibility. An agreement to do an act impossible in itself is void from the start.

Cases in which impossibility discharges a contract:

  1. destruction of the subject matter (a horse agreed to be sold dies in an accident);
  2. death or personal incapacity in a contract of a personal nature;
  3. a change in law that makes performance unlawful; and
  4. outbreak of war.

Mere difficulty of performance, a rise in costs or a strike, does not excuse performance.

Conclusion. Impossibility is an excuse for non-performance; difficulty is not.

Where the 5 marks sit

#ComponentMarks
1Supervening impossibility2
2Cases2
3Conclusion1
Total5
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