The 'Impossible Contract': From Roman Law to the Unidroit Principles of International Commercial Contracts and the Principles of European Contract Law
Fundamina 16 (1) 2010, p. 346
13 Pages Posted: 27 Oct 2015
Date Written: October 24, 2015
For the validity of an obligation, Roman law requires the existence of a number of fundamental contractual requirements, including that the object of the obligation must be possible, permissible and absolute (or at least determinable), and that it must have monetary value.1 The basic rule regarding the impossibility of a contract appears in Justinian’s Digest, D. 50.17.185, Celsus, libro octavo digestorum, impossibilium nulla obligatio est.
In the eighth book of his Digest, Celsus (second century C.E.) discusses the contract of sale (emptio-venditio). It is possible that he formulated the rule as an opinion applicable in a specific instance. The foundation of the rule may have been the parties’ unwillingness to realise something which could not be realised, such as the transfer of an article which never or no longer existed. Even if the parties are unaware of this fact, no obligation is created. It is better, therefore, to think that the law did not want to protect what seemed illogical. Indeed, it is apparently not logical for an obligation to exist when it is impossible to carry it out; at the same time, there are a few limitations which restrict the scope of the rule.
First, one must distinguish between initial preclusions and those which materialise after the conclusion of the contract. The principle of impossibilium nulla obligatio has a general character only as far as initial impossibility was concerned. We will further see that, in the second case, the one who was bound to the terms of the contract was exempt only if the impossibility was not the result of his negligence or of any other reason traceable to him. Otherwise, the obligation endures and all the consequences of its nonfulfiment arise.
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