Section 56, of the contract Act; deals with the impossibility of performance. “An agreement to do an act impossible in itself is void” Impossibility of performance is, as a rule not an excuse for non-performance of a contract. In the following cases, a contract is not discharged on the ground of supervening impossibility or “Doctrine of supervening impossibility” does not apply.
1. Difficulty of performance: A contract is not discharged merely because that it has become more difficult of performance due to some uncontemplated events or delays.
Example: Tsakiroglou and Co.ltd. (Vs) Noblee Throl G.M.B.H…(1962):
Facts: A agreed to sell to B 300 tons of Sudan groundnuts c.i.f Hamburg. The usual and normal route at the date of the contract was via Suez Canal. Shipment was to be in November/December, 1956, but on November 2, 1956 the canal was closed to traffic and it was not reopened until the following April. A refused to ship the goods via the cape of good hope on the plea that the contract had been frustrated by reason of the closing of the Suez route.
Judgment: The contract was not frustrated as A could have transported the goods via the Cape of Good Hope.
2. Commercial impossibility: A contract is not discharged merely because expectation of higher profits is not realized, or the necessary raw material is available at a higher price because of the outbreak of war, or there is a sudden depreciation of currency. Thus, performance cannot be excused on the ground of commercial impossibility.
3. Default of third person: when a contract could not be performed because of the default of a third person on whole work the promisor relied in such a case impossibility of performance cannot be excused. Thus it is not discharged.
Example: Ganga Saran Vs Ram Charan (1952):
Facts: A agreed to sell to B a specified quantity of cotton goods to be manufactured by a particular mill. B agreed to deliver as and when goods might be received from the mill. A time was named for the completion for the delivery. A could not fulfill the agreement as the mill failed to produce the goods.
Judgment: B was entitled to recover damages from A.
4. Strikes, lock outs, and civil disturbances: A contract is not discharged by reason of strike by the workers, or outbreak of some civil disturbances interrupting the performance of promise. However, the parties to a contract may agree to the contrary by making an express provision in this regard.
5. Failure of one of the object: if a contract is made for fulfillment of several objects, the failure of one or more of them does not discharge the contract.
Example: Herne bay steam Boat Company (Vs) Hutton (1903):
Facts: “HB” agreed to let out a boat to “H”.
a) for viewing a naval review on the occasion of the coronation of Edward VII,
b) To sail round the fleet. Owing to the king’s illness the naval review was abandoned but the fleet was assembled. The boat, therefore, could be used to sail round the fleet.
Judgment: The contract was not discharged, because failure of one of the object does not discharge the contract. 6. Self induced impossibility: if impossibility arises due to a party’s own conduct or act {i.e., a deliberate act or a negligent act}, it cannot be called as supervening impossibility, and therefore the party is not received from his obligation to perform.