Page:Harvard Law Review Volume 32.djvu/831

795 IMPOSSIBILITY OF PERFORMANCE OF CONTRACTS 'jgs practical point of view substantially equivalent to the temporary destruction of a factory dependent on coal for the running of its machinery, and yet inability to obtain coal would not in general be regarded as equivalent to the destruction of the factory in the eye of the law, even though such inability might be due to causes wholly beyond the manufacturer's control. Ordinarily, however, a prudent manufacturer would at least have been able to obtain contracts for the supply of coal to him, and if the coal was not forthcoming would himself have had a remedy on those contracts; and where this was not the case the law, as between two innocent parties, allows the loss to fall upon the one who has agreed to give performance, the case not falling within the somewhat arbitrary classification of cases in which impossibility is recognized as an excuse. It is submitted, however, that a wholly different situation exists where the failure of the coal supply was due to action of the gov- ernment directed specifically at preventing the defendant from obtaining coal, or from using his own coal as in the case of the heatless day order. The question in such a case is not simply whether a party should be held liable on a contract which he has been unable to perform because of causes beyond his control, but whether the judicial branch of the government should hold him .liable for failure to do an act which the executive branch, acting under legislative authority, had deUberately and designedly ren- dered impossible of performance. Such a holding would seem the redudio ad absurdum of the doctrine of the separation of powers. No doubt a contractor takes the risk not only of a declaration of war and of the general disturbance of business caused thereby including a shortage of essential materials due to war conditions. Thus, if, owing to the government's war need for coal, the market was so restricted as to bring about a cut-throat competition be- tween consumers, those who failed to obtain coal would probably be unable to plead such failure as a defense for their own breach of contract. Such consequential injury brought about by govern- mental action is however very different from a direct governmental prohibition, and a defendant should not be held liable for the re- sults which flow necessarily and directly from the latter. At least where the contract was made prior to the enactment of the Food Control Act, performance should be excused on the ground that