Page:Harvard Law Review Volume 32.djvu/839

803 I IMPOSSIBILITY OF PERFORMANCE OF CONTRACTS 803 deprivation of fuel, labor, transportation, etc., would, so far at least as it rested upon statutory powers, be a defense for non- performance of contracts. For the reasons above stated it is be- lieved that, under the doctrine of the Hulton case, the implied threat of such deprivation should be given the same effect, and that under war conditions it was immaterial that such an impHed threat might be made by an administrative agency other than that to which the statutory power had been delegated, provided only that the circumstances were such as to cause a reasonable man to beheve that the threat would if necessary have been carried out. The effect of priority certificates and other regulations and orders of the character under discussion as a defense in actions of contract raises, however, the question, which has already been re- ferred to in connection with the discussion of the Hulton case, supra, whether a contractor, in order to plead governmental com- pulsion as an excuse for failure to perform his contract, must show that the government had the power and apparent intention, in case of disobedience to its requests, not only to put him out of business for the future but to do so with sufficient dispatch actually to prevent performance of the contract in question. A contractor clearly should not be compelled to gamble on the possibiHty that the government's action would be slow, but sup- pose, for example, that he needed nothing from the government but coal and had enough of that on hand to enable him to perform the plaintiff's contract even if by so doing he would have lost his right to obtain coal in the future. No doubt at first sight it may seem extraordinary to speak of a contract being made impossible of performance because of threatened action which would not if taken have prevented performance. Nevertheless, the effect of requiring performance of the contract in such a case would in general have been not only to put the defendant out of business and thus possibly to ruin him, but also to have made it impossible for him to perform his other contracts which might well have had a longer time to run and might have been capable of performance consistently with compliance with the order of the government if he obeyed that order instead of defying it. It is believed that under such circumstances it would have been, from a practical standpoint, impossible to perform the contract; and that such a