Page:Harvard Law Review Volume 32.djvu/841

805 I IMPOSSIBILITY OF PERFORMANCE OF CONTRACTS 805 an agreement to produce is not a guaranty that government regula- tions such as those relating to priority will not make production impossible. Wherever a court can thus find that a contract is not an absolute guaranty of performance, it is the contention of this article that performance should not be required by the courts of a defendant who had disregarded his contractual obligations because of ad- ministrative regulations aimed at the defendant or the class to which he belonged, where the government had the power and the apparent intention to enforce the regulations directly or indirectly in a manner which would either have made performance of the particular contract impossible or have interfered with the defend- ant's business so drastically as to constitute what could fairly be called administrative coercion. It is possible that Congress may render the incorporation of such a doctrine in the common law unnecessary under present cir- cumstances by passing an immunity act which will protect per- sons who have complied with administrative regulations irrespec- tive of the existence of statutory authority for such regulations, and a precedent for so doing exists in the acts passed in 1863 and 1866 with regard to things done during the Civil War, the con- stitutionality of which acts was upheld by the Supreme Court in Mitchell v. Clark?^ No doubt such a statute would simpHfy the situation and furnish a ready means of doing justice in cases where justice cannot be done by the courts in the present state of the law without straining that law. Nevertheless it is the writer's belief that the courts can, if the facts with regard to the true character and scope of governmental action in war time are properly brought to their attention, deal with the matter of contracts in a manner which will in general protect those who have obeyed administra- tive regulations during the war period. E. Merrick Dodd. Boston, Mass. =a no U. S. 633 (1884).