The Development of the Doctrine of Impossibility

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Introduction

An act which is impossible to perform cannot be considered as a valid consideration in a contract. Doctrine of Impossibility hits at that part of the Contract which is impossible to perform or which could have been performed before, but due to certain unavoidable circumstances it is now impossible to perform. This doctrine follows the root to the latin doctrine, i.e., Lex non cogit ad impossibilia. But recently the application of this particular doctrine has been extended by the Supreme Court. I will discuss the basic jurisprudence adopted by the Supreme Court while applying the Doctrine of Impossibility.

The Context of Contract Act and Section 56

The doctrine of impossibility otherwise known as the doctrine of frustration has been given a statutory force under the Indian Contract Act, 1872. Under Section 56, it has been categorically mentioned that an Agreement to do an impossible act is void. Further this provision has been divided into various parts where it clarifies that if any act which was legal/possible before the agreement; and after the agreement that act becomes illegal/impossible then the agreement shall be void and if any loss occurred for non-performance of that act, then the party so aggrieved shall be compensated by the other.

The doctrine of frustration or impossibility lays down a rule of positive law and does not leave the matter to be determined according to the intentions of the parties.[1] If we say so then how will we define doctrine of frustration or impossibility? Well, it can be defined as an act which has to be done is frustrated because of an event or change of circumstances which so fundamental as to be regarded by the law as striking at the root of the contract, court can pronounce the contract to be frustrated.[2]

The doctrine of frustration under the English Law is kind of unimportant under the Indian Law. While the English Law theory focuses on the disappearance of the foundation of the Contract, Just and Reasonable Result and radical change of obligation, Indian Law focuses upon the supervening impossibilities and illegalities which is based on practical impossibility and not literal impossibility.

The provision under the Indian Contract Act is exhaustive in nature. While talking about the cases, under this doctrine Supreme Court extensively dealt the law of impossibility in the Satyabrata Ghose v. Mugneeram Bangur & Co and Anr.[3]. The Court stated that “The first paragraph of the section lays down the law in the same way as in England. It speaks of something which is impossible inherently or by its very nature, and no one can obviously be directed to perform such an act. The second paragraph enunciates the law relating to discharge of contract by reason of supervening impossibility or illegality of the act agreed to be done. The wording of this paragraph is quite general, and though the illustrations attached to it are not at all happy, they cannot derogate from the general words used in the enactment. This much is clear that the word “impossible” has not been used here in the sense of physical or literal impossibility. The performance of an act may not be literally impossible but it may be impracticable and useless from the point of view of the object and purpose which the parties had in view; and if an untoward event or change of circumstances totally upsets the very foundation upon which the parties rested their bargain, it can very well be said that the promisor finds it impossible to do the act which he promised to do.”

The judgment clearly established an overview of what is the contract law of impossibility. It sets some categories to identify the doctrine of impossibility or frustration.

Distinction between Impossibility and Frustration

The distinction between impossibility and frustration was done in the same case. The Supreme Court craved out the thin line difference between the frustration and impossibility. One of the most important aspects of a legal contract is the consideration. When the consideration of contract is such that it cannot be performed or be honored even before the it binds the parties, then that can be termed as an impossible contract or we can say doctrine of impossibility attracts those circumstances. And if a valid contract becomes impossible to perform after the parties agreed to perform, that attracts the doctrine of frustration.

If we take an example A is willing to pay Rs. 500, if B gets Moon for him. This consideration in the very contract is impossible which can never be performed. This Contract attracts doctrine of impossibility. If we take another example where A is willing to pay Rs. 500, if B get him Marijuana and as per the law pre-agreement business regarding marijuana is legal and the very next day before the performance of the contract State declares Marijuana business illegal which makes the contract impossible to perform. This circumstance attracts doctrine of frustration.

The Court observed that “the doctrine of frustration is really an aspect or part of the law of discharge of contract by reason of supervening impossibility or illegality of the act agreed to be done and hence comes within the purview of Section 56 of the Indian Contract Act. It would be incorrect to say that Section 56 of the Contract Act applies only to cases of physical impossibility and that where this section is not applicable, recourse can be had to the principles of English law on the subject of frustration. It must be held also, that to the extent that the Indian Contract Act deals with a particular subject, it is exhaustive upon the same and it is not permissible to import the principles of English law dehorns these statutory provisions.

Application of Doctrine of impossibility beyond Law of Contract

In general, if we consider, not only contracts, but various actions whether legal or non-legal may lead to impossibility of performance. There might many orders which may fall under this part of the law where it will be impossible to act upon such order. One of those instances can be seen in State of Rajasthan v. Shamsher Singh[4]. The Court observed while considering the doctrine of impossibility that however mandatory the provision may be, where it is impossible of compliance that would be sufficient excuse for non-compliance, particularly when it is a question of the time factor.

A similar kind of follow up was seen in the recent order of Supreme Court in the matter between State of Uttar Pradesh v. In Re: Inhuman Condition at Quarantine Centres and for Providing Better Treatment to Corona Positive[5]. The Supreme Court stayed the order of the Allahabad High Court which according to the Apex Court were incapable of being implemented in the given time by the High Court.

The Apex Court interpreted the doctrine of impossibility observing that “we are of the opinion that the High Court should normally consider the possibility of the implementation of the directions given by it, and such directions which are incapable of being implemented should be avoided. The doctrine of impossibility, in our view, would be equally applicable to Court orders as well.”

Conclusion

Doctrine of Impossibility is a law which has been stretched by the Court beyond the Law of Contract while interpretation. It is true that few actions, orders or matters of such kind, may not be possible to implement in the given time frame which might stand as hinderances in the justice administration. It is true that the order of the High Court was notable and not only that particular State Government, but all the States as well as the Union Government should focus on such kind of readiness during this pandemic. But it is not practically possible to implement such order in the given limited time-frame. It is an appreciable action taken by the Supreme Court interpreting the Doctrine of Impossibility against the orders passed by the High Court.


[1] Boothalinga Agencies v. VTC Pariswami Nadar, AIR 1969 SC 110

[2] Babu Ram v. Indra Pal Singh, (1998) 6 SCC 358

[3] AIR 1954 SC 44

[4] 1985 (Supp) SCC 416

[5] SLP (Civ) No. 7147/2021

Written By

Pratyasish Mohanty

Law Student, School of Law, KIIT University

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