Page:Harvard Law Review Volume 32.djvu/827

791 IMPOSSIBILITY OF PERFORMANCE OF CONTRACTS 791 is a question on which there is naturally but little authority in view of the fact that governmental interference has, as has been stated, been normally of such a character as to present problems with regard to illegality rather than impossibihty. It would appear, therefore, that courts are free to regard the problems arising out of governmental interference in war time as to a large degree sui generis, and that they need not adhere strictly in cases of this sort to the precedents which have been established in the law of impossibihty of performance in general, but are at liberty to reach the results most consistent with justice and public policy, as long as these results can be attained with due regard to the more fundamental principles of the law of contracts. II Removal of Subject Matter of Contract by Requisitioning The ordinary rules with regard to impossibihty will, however, furnish an adequate solution to a number of the problems pre- sented by war-time governmental interference with contracts. Thus where a contract for the sale of specific goods has been ren- dered impossible of performance by the requisitioning of those goods by the government, there would appear to be no difficulty in treating the requisitioning of these goods as equivalent to their destruction and hence as excusing failure to dehver them accord- ing to well-settled contract principles. A recent English case ^ which takes this view of the matter would, no doubt, be followed in this country.'* More difficult questions may, however, arise where the govern- ment has not taken over the title to property but has merely taken the right to its temporary use. A number of cases of this sort have arisen in England involving the effect on a charter party of the requisitioning of the use of a chartered ship by the government. Where the ship has been chartered for the purpose of making a particular voyage it appears to be the view of the English courts that a requisition which makes the voyage impossible puts an end ' In re Shipton, Anderson & Co., [1915] 3 K. B. 676. nent domain generally relates to real estate in regard to which the question is mate- rially affected by the doctrine of equitable title.
 * A similar problem might arise in eminent domain cases in peace times, but emi-