IMPOSSIBILITY. A thing which under the law or according to the due course of na ture cannot be done or performed.
Impossibility of performance is an impor tant head of the law of contract, and the questions arising as to its effect may. be af fected by the classification to which the impossibility is assigned, the time at which it arises, and whether it affects the promise or the consideration for it.
There may be an impossibility of fact, ex isting in the nature of things, or arising out of the circumstances of the case or a legal impossibility created by law.
Of the first kind there may be a contradic tion in the contract resulting from promises inconsistent with each other when made. There may also be a physical impossibility as ,when the thing contracted for is against the course of nature. Of the latter class ex amples are suggested of an agreement "to make two spheres of the same substance, but one twice the size of the other of which the greater should fall twice as fast as the small er when they were both dropped from a height ; or to construct a perpetual motion ;" the former having been considered an ele mentary fact before Galileo's experiment and the latter being still attempted. Wald, Poll. Contr. 350.
A physical impossibility may be either ab solute, which means impossible in any case, as if one should contract to reach the moon ; or relative, as to make a payment to one who is dead. Of this kind is what is termed practical impossibility, as when a ship is so Injured that it cannot be repaired except at an excessive or unreasonable cost ; in this case it is treated as a total loss, being physi cally but not practically possible to repair. Certain accidents occurring from death, tem pests, and the like are characterized by the phrase "Impossibility arising by the act of God" (q. v.).
A contract or condition, the performance of which is made impossible by a rule of law, is termed k legal impossibility ; as if one should give a bond to secure a simple con tract with a collateral agreement that there should be no merger of the contract debt.
A logical impossibility exists when the agree ment is inconsistent with the nature of the transaction, as where a gift is made to one expressly for his own benefit with a condi tion that he immediately transfer it to a third person.
The impossibility may exist at the time of making the agreement, in which case it is said to be original; or it may be caused by matter arising ex post facto, as where the party to be benefited dies after the contract to be executed though before the perform ance.. Such subsequent impossibility may be caused by the act of the party making the promise or the party to be benefited, or of a stranger, as a public enemy (q. v.), or by the act of God (q. v.).
An agreement to perform an impossibility whether in law or in fact is void; Wald, Poll. Contr. 352 ; Leake, Contr. 358; Harr. Contr. 34, 174. See L. R. 5 C. P. 577; Board of Corn'rs of. Mahoning County v. Yoing, 59 Fed. 96, 8 C. C. A. 27. There may, however, be the liability in damages for the breach of an unqualified undertaking to perform an impossibility ; Chicago, M. & St. P. R. Co. v. Hoyt, 149 U. S. 1, 13 Sup. Ct. 779, 37 L. Ed. 625 ; the real question in such a case is the existence of the liability ; 2 Q. B. 680; it is a question of construction, whether the language of the contract is to be treated as not applying to a situation which renders its literal performance impossible ; Harri man, Contr. 176. A contract to perform a notorious impossibility known to the parties to be such at the time of making the contract is void; 15 M. & W, 253 ; L. R. 6 Q. B. 124; L. R, 5 C. P. 577; if the impossibility has arisen after the making of the contract, al though without any fault of the covenantor, he is not discharged from liability under it; Jacksonville, M., P. Ry. & Nay. Co. v. Hoop er, 160 U. S. 514, 16 Sup. Ct. 379, 40 L. Ed. 515 ; an ,impossibility is no defence if occa sioned by the act of a stranger ; 2 Ld. Rayro. 1164; 2 El. & Bl. 688 ; or of alien enemies:; Aleyn 26.