Agreement to do Impossible Act
Section 56 contemplates various circumstances under which agreement may be void, since it is impossible to carry it out. The Section is reproduced below:
“An agreement to do an act impossible in itself is void”.
Contract to do act afterwards becoming impossible or unlawful:
A contract to do an act which, after the contract is made, becomes impossible, or, by reason of some event which the promisor could not prevent, unlawful, becomes void when the act becomes impossible or unlawful.
Compensation for loss through non-performance of act known to be impossible or unlawful:
Compensation for loss through non-performance of act known to be impossible or unlawful:
where one person has promised to do something which he knew, or, with reasonable diligence, might have known, and which the promisee did not know, to be impossible or unlawful, such promisor must make compensation to such promisee for any loss which such promisee sustains through the non-performance of the promise.
Example : A agrees with B to discover treasure by magic. The agreement is void.
Example : A agrees with B to discover treasure by magic. The agreement is void.
Analysis of Section 56
The impossibility of performance may be of the two types, namely (a) initial impossibility, and
(b) subsequent impossibility.
(1) Initial Impossibility (Impossibility existing at the time of contract):
When the parties agree upon doing of something which is obviously impossible in itself the agreement would be void. Impossible in itself means impossible in the nature of things. The fact of impossibility may be and may not be known to the parties.
Example: ‘A’, a Hindu, who was already married, contracted to marry ‘B’, a Hindu girl. According to law, ‘A’ being married, could not marry‘B’. In this case,‘A’ must make compensation to‘B’ for the loss caused to her by the non-performance of the contract.
Example: ‘A’, a Hindu, who was already married, contracted to marry ‘B’, a Hindu girl. According to law, ‘A’ being married, could not marry‘B’. In this case,‘A’ must make compensation to‘B’ for the loss caused to her by the non-performance of the contract.
(i) If known to the parties: It would be observed that an agreement constituted, quite unknown to the parties, may be impossible of being performed and hence void.
Example: B promises to pay a sum of ` 5,00,000 if he is able to swim across the Indian Ocean from Mumbai to Aden within a week. In this case, there is no real agreement, since both the parties are quite certain in their mind that the act is impossible of achievement. Therefore, the agreement, being impossible in itself, is void.
(ii) If unknown to the parties: Where both the promisor and the promisee are ignorant of the impossibility of performance, the contract is void.
(iii) If known to the promisor only: Where at the time of entering into a contract, the promisor alone knows about the impossibility of performance, or even if he does not know though he should have known it with reasonable diligence, the promisee is entitled to claim compensation for any loss he suuered on account of non-performance.
(2) Subsequent or Supervening impossibility (Becomes impossible after entering into contract): When performance of promise become impossible or illegal by occurrence of an unexpected event or a change of circumstances beyond the contemplation of parties, the contract becomes void e.g. change in law etc. In other words, sometimes, the performance of a contract is quite possible when it is made. But subsequently, some event happens which renders the performance impossible or unlawful. Such impossibility is called the subsequent or supervening. It is also called the post- contractual impossibility. The euect of such impossibility is that it makes the contract void, and the parties are discharged from further performance of the contract.
Example: ‘A’ and ‘B’ contracted to marry each other. Before the time fixed for the marriage, ‘A’ became mad. In this case, the contract becomes void due to subsequent impossibility, and thus discharged.
Example: B promises to pay a sum of ` 5,00,000 if he is able to swim across the Indian Ocean from Mumbai to Aden within a week. In this case, there is no real agreement, since both the parties are quite certain in their mind that the act is impossible of achievement. Therefore, the agreement, being impossible in itself, is void.
(ii) If unknown to the parties: Where both the promisor and the promisee are ignorant of the impossibility of performance, the contract is void.
(iii) If known to the promisor only: Where at the time of entering into a contract, the promisor alone knows about the impossibility of performance, or even if he does not know though he should have known it with reasonable diligence, the promisee is entitled to claim compensation for any loss he suuered on account of non-performance.
(2) Subsequent or Supervening impossibility (Becomes impossible after entering into contract): When performance of promise become impossible or illegal by occurrence of an unexpected event or a change of circumstances beyond the contemplation of parties, the contract becomes void e.g. change in law etc. In other words, sometimes, the performance of a contract is quite possible when it is made. But subsequently, some event happens which renders the performance impossible or unlawful. Such impossibility is called the subsequent or supervening. It is also called the post- contractual impossibility. The euect of such impossibility is that it makes the contract void, and the parties are discharged from further performance of the contract.
Example: ‘A’ and ‘B’ contracted to marry each other. Before the time fixed for the marriage, ‘A’ became mad. In this case, the contract becomes void due to subsequent impossibility, and thus discharged.
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