Учебный год 22-23 / W_W_BUCKLAND_AND_ARNOLD_D_McNAIR_ROMAN_LA

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up by Lord de Villiers, though his doctrine was much more rigorous in that it admitted only donations in the strict sense of the term as exceptions to the doctrine of consideration.1

The protection against the consequences of ill-advised declarations of intention, which serves as a modern justification for the doctrine of consideration, is largely effected in other systems by the requirement of writing, whether formal or informal. Thus in both French and German law a formal writing is required for promises of gifts, in the former a notarial document,2 in the latter either a notarial document or a document attested in open court.3 Moreover, German civil law insists on writing for abstract acknowledgements of debt, i.e., where no cause is disclosed.4 In French civil law all contracts for more than 5000 francs must be in writing^ and indeed French lawyers admit quite freely that they view all oral evidence with the utmost suspicion. In most countries commercial contracts are almost entirely free from the requirement of writing.6 In Scots law writing and consideration are alternatives, though some contracts must be in writing even if there is consideration.

CHAPTER VII. OBLIGATIONS:

GENERAL (cont.)

1. IMPOSSIBILITY

In Roman law, as in ours, agreements for plain impossibilities, or on conditions involving plain impossibilities, are void, though, naturally, many things quite possible to us were thought of as impossible in Rome. There are some points of terminology which should be mentioned. Augustan and earlier Latin had no such word as impossibilis. Labeo has to express the idea in Greek,1 and Julian does the same,2 though by his time the word impossibilis had acquired citizenship. It never seems to have been very common. The more usual expression is 'in rerum natura non esse' or the like, in which the influence of Greek philosophy is evident.3 Though texts not infrequently use the word impossibilis without limitation to any particular type of what we should call impossibility, it does not seem ever to be specifically applied except to something to be done or given. To touch the sky with one's finger is impossible : that a son should be older than his father is still contra rerum naturam.

The rule laid down in the most general terms, *impossibilium nulla obligatio est',4 and covering legal impossibility as well as physical, seems to apply in practice in our own law, though on the last application there is little authority.* With us the line taken seems rather to be that the parties must have assumed possibility as the basis of the contract, so that it is theoretically, and perhaps practically, possible for a man to contract validly to perform an absolute impossibility. In Roman law the rule is stated

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The point could not arise in the other stricti iuris contracts, mutuum (loan for consumption) and expensilatio (a fictitious entry of money lent), for they deal only with 'fungible things' and 'genera non pereunt'. But it has great importance in the field of the condictiones. The condictio was a remedy for unjustified enrichment. Its primary application is to money paid by mistake; the condictio indebiti lies for recovery of money paid in the erroneous belief that it was due. But in the present connexion another application is of greater interest, that of the con- dictio ob rem dati, called by Justinian ''condictio causa data causa non secuta\ We have seen that not every bargain was an enforceable contract. There were many dealings not covered by the scheme of contracts and therefore not legally enforceable. Such were agreements for mutual services, including exchange (for sale required a money price); and for such things there was in earlier law no mode of enforcement. So long as nothing had been done under the agreement this was perhaps endurable, but when one party had handed over his contribution the fact that he could not compel the counter-performance constituted a grave injustice. Accordingly the civil law provided a condictio ob rem dati^ by which even if the person who had done his part could not enforce the counterperformance, he could at least recover what he had paid. This created a civil obligation, which was entirely unilateral, for the first performance was not made under any obligation at all. It was thus closely analogous to stipulatio. We should thus expect that here as there, however harsh

it may seem, casus rendering the counter-performance impossible would release the promisor from his obligation. And, as it was release of the person liable and no more, the person who had originally performed would not have the condictio ob rem dati^ as he would where there was simply failure to perform. So the law is laid down in a number of texts, some of them giving an obviously unjust

result. There are, however, some texts which lay down the more equitable doctrine that, on such facts, what had been handed over could be recovered by the condictio. These are mostly in non-commercial cases and have all the air of equitable relaxation of a harsh civil rule, and some of them at least are probably post-classical.1 The conflict has been noted by many modern writers and disposed of in various ways. Girard2 considers the right of retention to be a late development, but as a strict rule of civil law the retention is intelligible, while it is wholly unlike the general attitude of later law.3 However, its origin is unimportant for us: in the Corpus Juris the weight of evidence is strongly in favour of retention, at any rate where the case has a commercial aspect. In the modern Roman law it has disappeared. There is only one system of contract and any agreement normally makes a contract. Thus the real field of condictio ob rem dati no longer exists and bonae fidei notions have practically ousted those of strictum ius. Thus, e.g., Dernburg4 ignores the retention texts altogether.

The important point to notice is that the special field in which these results occur is that of partly performed agreements which could not legally be enforced. If the transaction comes within the field of one of the recognised bonaefideicontracts wholly different considerations apply, and there is no reason to appeal to the principles of the condictio. This point is sometimes ignored. Thus in the

Cantiere San Rocco Case* an agreement to supply a set of marine engines was made between a Scottish and an Austrian company. The outbreak of war made the performance of the contract impossible and the Court held that

a deposit paid must be refunded. The decision, which was

1 For texts and fuller discussion see a note signed ' W. P.* in 2 Cambridge Law Journal\ p. 215, and Buckland, 46 Harvard Law Review, 1933, pp. 1281 sqq.

2Manuel, 8th ed. p. 631.

3See the article by Buckland cited supra, n. 1.

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manifestly just, was under Scots law and does not itself concern us. Both the Court of Session and the House of Lords made excursions into Roman law, as the basis of Scots law. They held that the deposit paid was recoverable under the principles of the condictio. But for these principles they went not to the texts but to the authoritative textbooks of Scots law, in most of which, much influenced by the modernus usus, the rule that casus is an absolute release of the party bound, and no more, has disappeared.1 In fact the condictio had no bearing on the case. It was one of emptio venditio and was governed by the rules of that contract, if treated as a question of Roman law. Treating the case as sale, the decision was perfectly sound: in Roman sale the risks are on the vendor till the goods are in a deliverable state and till then he is entitled to no part of the price. If, therefore, the goods never reach a deliverable state but the contract is destroyed, he must refund anything he has received, on the principles of bonaefideiiudicia?

On the other hand, whereas the general rule of Roman law was, as we have seen, that a party whose performance became impossible without fault or fraud, was released, for 'lex non cogit ad impossibilia', the rule of the common law was almost the exact opposite. We say 'was', because it has in recent years executed almost a complete volte-face. The attitude of the common law towards the party thus prevented formerly was: 'you should not have been so foolish as to make an absolute promise and you must pay for your folly'. 'When the party by his own conduct creates a duty or charge upon himself, he is bound to make it good, if he may, notwithstanding any accident by

1 I.e., the modern developments of Roman law. Both Courts were very much disturbed by the fact that Erskine, the older writer on whom most reliance is usually placed, enunciated the law of casus in its pure Roman form, as described above.

2 For fuller discussion of this case and the principles of Roman law involved, see the article above cited, 46 Harvard Law Review, 1933, pp. 1281 sqq., iCasus and Frustration in Roman and Common Law'.

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Instead the principle now apparently applies * whenever

. . . without default of either party a contractual obligation has become incapable of being performed because the circumstances in which performance is called for would render it a thing radically different from that which was undertaken by the contract/1

2. CJSUS AND FRUSTRATION

With supervening impossibility, casus^ modern law has had occasion to grasp another phenomenon, which has acquired the name of frustration. It may be that while it is physically quite possible to carry out the contract, on both sides, there has been such a change of circumstances that effect cannot be given to the real purpose of the parties; or, more generally, some state of facts, or some event, which was assumed as the basis of the whole transaction, has ceased to exist, or has not happened. In a number of cases our law has treated this as equivalent to supervening impossibility, but the principle is confined within fairly narrow limits and cannot be invoked merely because of an uncontemplated turn of events.2 Thus if I hire a field to play a cricket match I shall not be able to refuse to pay the hire because owing to a railway accident the visiting team telegraph that they are unable to come. The principle has, however, been applied where seats were taken to view the Coronation procession of King Edward VII, and this did not take place.3 Having adopted, as we have seen, the doctrine of an implied condition as a means of giving effect to supervening impossibility which was actual, physical, it was an

1Davis Contractors Ltd. v. Fareham U.D.C. [1956] A.C. 696 at p. 729 per Lord Radcliffe.

2See British Movietone News Ltd. v. London and District Cinemas Ltd.

[1952] A.C. 166 at p. 185.

3But it was not applied to a contract for the sale of groundnuts, which were to be delivered from Port Sudan to Hamburg, when the Suez Canal was closed to shipping in November 1956, a few weeks after the making of the contract: Tsakiroglou & Co. Ltd. v. Noblee & Thorl G.m.b.H. [1962] A.C. 93.

easy step for the common law to apply the same doctrine1 to impossibility which was constructive; much easier than it would have been to extend casus for this purpose.

There is here no direct point of comparison with Roman law, because frustration not amounting to actual impossibility is little represented in the texts; but, assuming that the Romans would have treated this as casus, it is possible to make an interesting comparison of the ways in which the two systems deal with the effect of casus and frustration upon the rights and liabilities under the contract. Such cases are usually either sale or hire. Confining ourselves to cases in which no part of the service has been rendered on one side, but the other has paid or promised to pay, we get—or rather we used to get—a remarkable difference in the two systems. In the Coronation cases2 the Court reached the conclusions that the loss must lie where it fell, that a deposit paid in respect of the seats hired could not be recovered, and further that instalments not yet paid but already due when circumstances put an end to the contract could be recovered by the party who had contracted to provide the accommodation, while liability for payments to accrue due at a later date was annulled. The Court took the view that the contract could not be rescinded ab initio, that therefore instalments paid could not be recovered, and that one from whom there was due a payment which had not been made ought not to be better off than if he had actually paid.3 The effect of these decisions was to apply the rules of the condictio to a case which would have been in Roman law one of hire, a bonae fidei negotium to which the doctrine of the condictio had no application. It is clear that Roman law would have reached

1 But see ante, p. 243.

2 See especially Krell v. Henry, [1903] 2 K.B. 740, and Chandler v.

Webster, [1904] 1 K.B. 493, and criticism in Maritime National Fish,

Limitedv. Ocean Trawlers, Limited, [1935] A.C. 524.

3 For a discussion of the reasoning of the Court and the interpretation put upon earlier cases on the authority of which the Court purported to act see the article already cited from 46 Harvard Law Review, pp. 1281 sqq.