General principles of contracts series; (part 6) physical possibility

The third requirement for a valid contract is that the contract must be physically possible to perform (failing which it is void). A contractual term that is physically impossible to perform cannot be enforced. Now, this may sound a little obvious, but it can get quite interesting, especially for musicians.

For physical impossibility to release a party from his obligations to a contract, it must be an objective physical impossibility that is not due to the fault of the non-performing party. That means that no one in the position of the defendant could have performed according to the fundamental term of the agreement, and it was an external factor beyond the control of the parties that caused the impossibility. The correct technical term for this is "supervening impossibility of performance" (i.e. it comes after the contract was concluded, or "supervened"). Let's illustrate this by way of example:

AVL Productions owns a very fancy Avid VENUE D-Show mixing console. The company was contacted by Big Concerts' technical production team to rent this console and engineer several gigs, including Bryan Adams, Ne-Yo, Snow Patrol, the 2010 South Africa FIFA World Cup Kick-off Concert and, the biggest of all, the Coca-Colab Concert featuring Korn and 30 Seconds to Mars.

This was because these American artists, on their riders, insisted on this console being provided, due to its unique digital features and plugins. (Their engineers use it on US tours, so they could simply insert their own iLoks, and the console would automatically recognise the band settings). It just so happens that the only D-Show console in Africa belongs to AVL Productions. Let's imagine for one horrible second that, the day before, say, the Korn and 30 Seconds gig, the console was struck by lightning and irreparably damaged, so AVL could not provide it as per the hire agreement.

Would the company be in breach of contract? The answer is no, because no one in AVL's position could reasonably have performed in terms of the agreement. AVL's D-Show is the only one in the country, and it would not have been physically possible to get another one here in two days. No reasonable person in those circumstances could perform according to the contract, so the contract would be void for physical impossibility, and the company would not be liable.

But let's change the facts slightly. Let's say it wasn't the D-Show that was hired, but one of our other consoles - say the Soundcraft MH3. If this console had been struck by lightning, would the same principle not apply? The answer is no it would not, because there are several MH3 consoles in the country. If AVL's was destroyed by lightning, it could, in order to honour the agreement, sub-hire one from another company and provide that one instead.

Even if AVL lost money on this deal, it would still be required to perform, because the impossibility in this case is not objective, but subjective (i.e. applying only to it), because it is still reasonably possible for it to perform in terms of the contract - just at some cost. So in this case, AVL would be in breach of contract if it did not perform (provided there were indeed other MH3's available).

Here's a real-life example: during her dark days, the late Brenda Fassie, one of South Africa's biggest music stars, was booked to play a very large township concert. The gig was on a Saturday night. Unfortunately, apparently due to Brenda's health and dependency problems, she fell very ill on the Friday and literally lost her voice. She simply could not perform.

When the announcement was made (regrettably, the promoter chose to do so at the gig, and not before hand), thousands of people threatened to storm the stage, and there was a very nasty scene. The question we need to ask is: was Brenda in breach of contract, and could she be sued for contractual damages? The answer is, of course, no. It was physically impossible for Brenda, or anyone else in her position, to deliver a Brenda Fassie concert that night. Her identity was integral and fundamental to the contract, so it would have been of no use to sub-contract the performance to someone else, and Brenda herself was objectively unable to perform. This was a classic case of objective physical impossibility of performance, therefore no breach of contract.