(d) Both parties knew that the house was consumed. (L. 57, sec 3.) Here the contract is invalid throughout Even if each party concealed his knowledge of the fact from the other, his fraud cannot give him a right of action. This conclusion, however, does not apply in cases where a part of the building is spared, and is the real object of the contract.

Another passage is as follows: -

L. 58, D. de contr. empt. Papin. (1-10). Quaest, "Arboribus quoque vento dejectis, vel absumptis igne dictum est, emptionem fundi non videri esse contractam, si contempla-tione illarum arborum, veluti oliveti, fundus comparabatur; sive sciente, sive ignorante venditore: sive autem emptor sciebat vel ignorabat, vel uterque eorum, haec optinent, quae in superioribus casibus pro aedibus dicta sunt.'"

This is the case of the sale of a nursery-garden in which the trees were as much the principal object of the bargain as the superficies in the bargain of the sale of the superficies. Such being the view of the parties, it follows that, when the trees are blown down or burned after the closing of the contract, the same rule is applied as in the former case of the burning of the house.

It should be observed also that the ruling in respect to the burned house is to be limited to the particular state of facts. A house partially burned may be rapidly restored. There may, however, be cases where a destruction of a fraction may be really the destruction of the whole; and to such cases the ruling before us does not apply. There may also be cases in which restoration is impossible, as where a picture by an old master is partially burned. In such cases it would be absurd to talk of measurement as a mode of determining whether the purchaser continues bound by the bargain; the true test is the relation sustained in value to the whole by the part whose delivery is still possible. And, in addition, it is essential to determine what is the primary object of the contract. If this can be effected, impossibility of performing a trivial and comparatively insignificant condition does not affect the validity of the contract, though it may touch the question of price.

When the contract relates to a plurality of things, impossibility to deliver one of these things is determined by the rules above stated in all cases in which that thing was the principal object in executing the contract. If, however, the impossibility of delivery load the vessel in a foreign port at a stipulated freight, but who is prevented . by causes beyond his control from obtaining a complete cargo, can recover the freight earned by the cargo he carried.1 And in case of part performance of a divisible contract of sale, the unperformed part of the contract having become impossible, the defendant is entitled to recover the proportion of the contracted price, subject to such abatement as is required by the imperfection of the work as completed.2 sec 331. It may be that the impossibility presents an impediment that can never be removed, as where there is a contract to deliver a thing which never can exist. On the other hand, the impossibility may be only temporary, as where the contract is to sell a thing on which there is a temporary embargo.3 On this question subtle distinctions have been taken in the Roman law. In the first place are distinguished those cases in which the parties, at the time of the completion of the contract, took no notice of the probable future cessation of the impossibility. On this point two opposite theories may be noticed.4 We may on the one side hold to the nullity of all transactions which, at the time of contracting, cannot possibly be performed; or we may, on the other side, hold that only those transactions are null in which the impossibility of performance is permanent. But the first of these hypotheses cannot be accented. Even supposing that the parties were at the time ignorant of the temporary hindrance in their way, we have no right to assume as a rule that the contract would not have been made by them had they been aware of the hindrance. The vendee, for instance, in a case of sale, may find it far better for him to obtain the article he desires, though later than he expected, than it would be to lose it altogether; the vendor cannot complain if the delivery is not exacted from him until after the period first designated by him. Yet relates to subordinate accessary articles, then, when the parties were at the time of the contract ignorant of the impossibility, the contract stands with an abatement of price.

1 Infra, sec 579, 580, 714, 899; Adlard v. Booth, 7 C. & P. 108; Lord v. Wheeler, 1 Gray, 282.

2 Howell v. Coupland, L. R. 1 Q. B. D. 258; supra, sec 313-4.

Impossibility may be permanent or temporary.

1 Ritchie v. Atkinson, 10 East, 295; supra, sec 313-4.

2 See Thornton v. Place, 1 Moo. & R. 218; Mondel v. Steel, 8 M. & W. 870; Stewart v. Fulton, 31 Mo. 59. As to divisibility, see supra, sec 233; infra, sec 338, 511, 552, 899.

3 See supra, sec 319.

4 Mommsen, op. cit. 143.

to the hypothesis that the nullity of the transaction cannot be pronounced until the impossibility is determined to be absolute and final, there are also serious objections. The question of the validity of many contracts will remain in abeyance until some often remote contingencies are settled. The intention of the parties usually is that the transaction in which they are engaged shall be either at once consummated or at once abandoned, so that their hands should be free for other engagements; but this intention would be defeated if they should be tied up by a suspended contract until some distant future event shall determine whether they are bound or free. It is not good, also, for the business community that negotiations of this class should be kept in this condition of paralysis. To avoid the difficulties inherent in both these opposing theories, the Roman jurists hit upon an intermediate view which is expressed in the following passages: sec 2. L. de inut. stip. (3,19). "Idem juris (aeque inutilis) est (stipulatio), si rem sacram aut religiosam, . . . vel publicam, quae usi-bus populi perpeiuo exposita sit, . . . vel liberum homi-nem, quem servum esse credebat, vel cujus commercium non habuerit, vel rem suam dari quis stipuletur. Nee in pendenti erit stipulatio ob id, quod publica res in privatum deduci, et ex libero servus fieri potest, et commercium adipisci stipulator potest, et res stipulators esse desinere potest: sed protinus inutilus est." - L. 83, sec 5, D. de V. 0. (45, 1), Paul. I. 72 ad edict. " Sacram, vel religiosam rem, vel usibus publicis in perpetuum relictam, ut forum, aut basilicam, aut hominem liberum, inutiliter stipular; quamvis sacra profana fieri, et usibus publicis relicta in privatos usus reverti, et ex libero servus fieri potest."

From these rulings we may infer, argues Mommsen,1 that on the one side the mere possibility of a future removal of an impediment does not validate an impossible contract, and on the other side that the contract will not be a nullity when the impediment is merely transient. Thus it is expressly declared that the promise of a res publica is void only in those cases in which the thing promised is devoted "in perpetuum" to public use. And this view is still more distinctly asserted in the following: L. 35, sec 1, D. de V. 0. (45,1) Paulus 1.12 ad Sabin. "Item, quod leges fieri prohibent, si perpetuam causam serva-turum est, cessat obligatio."

1 Op. cit. 145.

We have, then, to distinguish between transient and permanent impediments, and as to the line to be here drawn some differences of opinion exist. Savigny1 holds that permanent impossibility cannot be assumed in cases in which the possibility of the event in question may be looked upon as something within the range of ordinary expectation. Mommsen2 holds, on the other hand, that to make impossibility of performance a ground of nullity, such impossibility must be of a permanence which is continuous. A mere temporary inhibition of sale, therefore (e.g. an embargo), would not fall within this category; though it would be otherwise with a permanent inhibition (e. g. in case of laws prohibiting the sale of intoxicating or poisonous liquors or drugs). When, also, an obligation depends upon the co-operation of a particular person, his temporary sickness would not annul the contract, though it would be otherwise with his permanent insanity. - What has been said applies only to those cases in which the contract contains no provisions as to its efficiency in case of the removal of an intervening impediment. It is competent for the parties to provide that certain things shall be done on the removal of an impediment which is on its face continuous, provided the contingency of such removal be not absolutely impossible, and provided that the contract is not against good morals, as is a contract to sell goods whose sale the state, on grounds of policy, prohibits.3

1 Syst. III. p. 167.

2 Op. cit. 147.

3 See as to effect of war in suspending operation of contract, supra, sec 305, infra, sec 476.