Sec 330

So far as concerns even a non-culpable vendor, partial impossibility constitutes no defence. He has contracted for a specific price to sell a particular thing. Events for which he is not responsible prevent him from selling more than a part of this thing. If the value can be proportionally assessed, he cannot complain if he is compelled to deliver that which he is capable of delivering at its proportionate price. To this he is bound. It is otherwise with the purchaser. If he knew at the time of the contract that it could only be partially performed, then we have a right to assume that he expected to obtain only so much of the thing contracted for as could be delivered. This, however, cannot be supposed in cases where he was ignorant of this partial impossibility. It by no means follows that because he wanted the whole, therefore he wanted a part. In many cases a part would be useless without the whole; in no case can it be assumed to be the object of a contract when the whole is contracted for. At the same time there may be cases in which the part which it is impossible to deliver is so insignificant that we may hold that the contract is not dependent upon its delivery.3 In our own law, Partial impossibility a defence pro tanto.

1 Pollock, op.cit., 377, citing Co. Lit. 206, b; Shepp. Touch. 373. See Hughes v. Edwards, 9 Wheat. 489.

2 See supra, sec 30.

3 See infra, sec 579, 605, 716, 899.

The following passage in the Pandects is given by Mommsen (p. 164) as the leading authority on this topic: L. 57, D. de contr. erupt. (18, 1), Paulus I. 5, ad Plautium. " Domum emi, cum earn et ego et venditor com-bustam ignoraremus - Nerva, Sabinus, Cassius, nihil venisse quamvis area man-eat; pecuniamque solutam condici posse ajunt. Sed si pars domus maneret, Neratius ait, hanc questionem multum interesse, quanta pars domus incendio consumptae permaneat; ut si quidem amplior domus pars exusta est, non compellatur emptor perficere empti-onein; sed etiam, quod forte solutum ab eo est, repetet. Sin vero vel dimidia pars, vel minor quam dimidia exusta fuerit, tunc coartandus est emptor vendi-tionem adimplere, aestimatione viri boni arbitratu habita, ut quod ex pretio propter incendium de crescere fuerit inventum, ab hujus praestatione libe-reter. - sec 1. Sin autem venditor quidem sciebat domum esse exustam, emptor when a consideration is incapable of division, if a part performance is impossible, then, the whole consideration falling, autem ignorabat, nullam venditionem stare, si tota domus ante venditionem exusta sit: si vero quanta cumque pars aedificii remaneat, et stare venditionem et venditorem emptori quod interest restituere. sec 2. Simili quoque modo ex diverso tractari oportet, ubi emptor qui dem sciebat, venditor autem ignorabat; et hic enim oportet, et venditionem stare, et omne pretiam ab emptore venditori, si non depensum est, solvi: vel, si solutum sit, non repeti. sec 3. Quod, si uterque sciebat, et emptor et venditor, domum esse exustam totam, vel ex parte, nihil actum fuisse, dolo inter utramque partem compensando: et judicio, quod ex bona fide descendit, dolo ex utraque parte veniente, stare non concedente." In this extract we have considered several aspects of the question of impossibility of performance through the burning of a house contracted to be sold. The following conditions are presented: -

1. The house is wholly consumed. But the impossibility of performance is only partial, as the area remains: "quamvis area maneat." Nevertheless the case is treated as one of entire impossibility. The will of the purchaser is supposed to have been directed to the purchase of the house; the area is not his object, but the building. The contract, therefore, is invalid, not only where both parties were ignorant of the fire, but where the vendor knew it, but fraudulently concealed his knowledge.

2. The burning is but partial. Here the following distinctions are noticed by Mommsen: -.

(a) Both parties are ignorant of the burning. If more than half is burned, then the purchaser cannot be compelled to execute the contract. He has the choice of throwing it up or of confirming it. If he elects the former course, he can recover the part of the purchase-money he has paid; nor can he, according to the Roman law, be indemnified for any loss he may have sustained in the transaction. If, however, he elects to confirm the contract, then he is entitled to a proportionate abatement of the price. If half only, or less than half, is burned, then the contract is held to be in force, the price being proportionally abated.

(6) If the vendor alone knew that the house could not be delivered complete in consequence of the burning, the contract binds him so far as concerns the part of the house that remains; the purchaser is entitled to possession, with damages to compensate him for the loss of the part whose destruction was not communicated to him. The vendor has fraudulently concealed this partial burning. Had the purchaser known it, he either would not have made the purchase, or would have made it at a less price. And at the same time the purchaser has a right to call for a rescission of the entire contract on the ground of fraud.

(c) Had the purchaser alone information of the burning, the contract would be binding so far as concerns the purchaser, who is compellable to pay the whole price. The case, it should be remembered, is that of a partial burning. The supposition in such case is that the purchaser, being aware at the time of the partial burning, had his eye fixed, for the purpose of purchase, on the building as thus partially dilapidated. And though it is possible that he may have had other the contract will not be enforced.1 It is otherwise when the contract is divisible.2 Thus a master of a vessel who has agreed to views, yet, if he suppressed the fact of which he was cognizant, he cannot afterwards take advantage of this suppression. But this only applies to a partial burning. If the building was wholly burned, and the purchaser was cognizant of the fact, and the object was simply possession of the building, then the whole contract falls for want of consideration. And in any view the vendor is bound, in all cases of partial burning falling under this head, to deliver, if required, to the purchaser the area with the remaining portion of the building.