The doctrine of impossibility is a concept in the law of contracts used to
grant relief to a promisor whose contractual performance becomes vitally
different from what had reasonably been expected of him due to the occurrence of
a supervening event. Doctrine of Impossibility majorly applies to law of
contracts. Taylor v. Caldwell presented the first general formulation of the
doctrine of impossibility wherein the court granted relief on the principle
contracts in which the performance depends on the continued existence of a given
person or thing, a condition is implied that the impossibility of performance
arising from the perishing of the person or thing shall excuse the performance.
This concept has been imbibed into Indian Legal Framework in the form of section
56 of Indian Contract Act, 1872 which provides for the impossibility of
performance of a Contract. Time and again this concept has been used as defense
in and cited by courts in situations where the performance of the contract
becomes impossible or impractical and all the possible execution of contract has
This doctrine may have arisen for the purpose of defense in cases of
impossibility of performance of Contracts but have also been used in judicial
pronouncements when orders of the Court become impractical or impossible to
execute by any party. This has been highlighted in the recent order of the
Supreme Court wherein the division bench observed that the High Courts should
normally consider the possibility of execution of their directions and if such
directions cannot be implemented, then such orders may not be passed.
This order was in response to the petition filed by State of Uttar Pradesh
against the order of Allahabad High Court wherein the court had laid down
certain directions for the state to implement which were, according the state of
UP, impossible to execute given the situation.
For example some directions given were like to arrange for atleast 2 ambulances
with Intensive Care Unit facilities per village and this had to be done within 1
month. Given the number of villages in UP, i.e., 97000, the govt. of UP said
that such directions are incapable of being implemented by the State Government
in the said time limit. The principles enshrined in the legal maxims lex
non cogit ad impossibilia
and impotentia excusat legem
further support to the doctrine.
In lay man’s understanding lex non cogit ad impossibilia
means law does
not compel a man to do that which cannot possibly be performed and impotentia
excusat legem means law will generally excuse a default if a party is unable to
perform a duty created by law without any default in him and where he has no
remedy. Simply put, where the law creates a duty or charge, and the party is
disabled to perform it, without any default in him, and has no remedy over it,
there the law will in general excuse him.
To understand the application of this doctrine in judicial pronouncements we
need to dig deeper into various other such judgements or order given by the
Courts in the past years. Bombay High court in a case observed that if in the
interpretation the Court finds the duty either impossible of performance and
beyond the normal capacity of a reasonable or prudent man, or when performance
in the strictest language of the enactment is either idle or impossible, then
the enactment must be understood as dispensing with the strict performance of
that duty. When it appears that the performance of the formalities prescribed
by a statute has been rendered impossible by circumstances over which the
persons interested had no control, like the act of God, the circumstances will
be taken as a valid excuse.
In another case before the Bombay High Court, the court relied on the
Broom's Legal Maxim and discussed the following 3 points when pleading
- In the first place, it must see that the nature of the necessity pleaded
be such as the law itself would respect, for there may be a necessity which
it would not. A necessity created by a man's own act, with a fair previous
knowledge of the consequences that would follow, and under circumstances
which he had then a power of controlling, is of that nature.
- Secondly, the party who was so placed used all practicable endeavours to
surmount the difficulties which already formed that necessity, and which, on
fair trial, he found insurmountable. I do not mean all the endeavours which
the wit of man, as it exists in the acutest understanding, might suggest,
but such as may reasonably be expected from a fair degree of discretion and
an ordinary knowledge of business.
- Thirdly, that all this shall appear by distinct and unsuspected
testimony, for the positive injunctions of the law, if proved to be
violated, can give way to nothing but the clearest proof of the necessity
that compelled the violation.
In brief, before applying the doctrine of impossibility to any case the courts
have to be satisfied that the situation so arisen shouldn’t be created by the
party, claiming the defense, itself and it did not have any prior knowledge of
it. Also, the party has to exhaust all the options in its quiver before claiming
the impossibility of performance. Finally, the court also has to make sure that
the situation at hand, which arose due to violation of certain law, was due to
There have not been many precedents regarding the application of the doctrine of
impossibility to the judicial pronouncements. This order by the Supreme Court on
the directions given by Allahabad High Court is certainly a welcome decision
given the pandemic situation which has overwhelmed the country’s medical
infrastructure and also on the country’s resources in every possible way. Both
government and judiciary have to play their part in sailing through these tough
Allahabad High Court’s directions had no ill motives or belief that the
government was not doing enough for its citizens rather the court got carried
away at the sight of human loss and sufferings that was created due to this
pandemic. It was purely in good faith but regardless of how bad the situation
gets judiciary has to be more balanced in its approach and avoid such directions
which for even the government becomes impossible to act upon.
- Charles G. Brown, The Doctrine of Impossibility of Performance and the
Foreseeability Test, 6 Loy. U. Chi. L. J. 575 (1975).
- Taylor v. Caldwel, 122 Eng. Rep. 309 (1863).
- The doctrine of impossibility is equally applicable to courts. State of
Uttar Pradesh v. In re: Inhuman condition at quarantine centres and for
providing better treatment to corona positive, Petition(s) for Special Leave
to Appeal (C) No(s).7147/2021, Order dated 21/05/2021
- In-Re Inhuman Condition At Quarantine Centres And For Providing Better
Treatment To Corona Positive Vs. State Of U.P., Public Interest Litigation (PIL)
No. - 574 of 2020 at Allahabad, Order dated 17/05/2021
- In Re: Presidential Poll vs Unknown, (1974) 2 SCC 33
- Emperor v. Ganpat Laxman Kalgutkar, AIR 1938 Bom 427.
- Ibid 5; also see Broom's Legal Maxims, 10th Edition at pp. 1962-63 and
Craies on Statute Law, 6th Ed. p. 268
- Municipal Council, Morshi v. Tulsiram Vishwanath Gadbail, 1977MhLJ 735