Prevention of Performance

Where performance on either side becomes impossible after the conclusion of the contract
owing to the fault of other the debtor or creditor, the contract is not terminated but the party
who rendered the performance impossible is guilty of a breach of contract
Fault
Fault is an essential element of the breach since in its absence supervening impossibility will
terminate the contract
There is only one standard of fault

The care that could be expected from an ordinary reasonable person in the circumstances

The absence of fault will not be an excusing factor if the debtor has guaranteed performance
unless the inability to perform is due to the fault of the creditor.

If the debtor culpably renders the performance impossible while already in mora, the
reach undergoes a change of form

Remedies
On the assumption that the inability to perform is total, the breach will always be sufficiently
serious to merit recession. Thus, where the debtor is to blame for their inability to perform,
the creditor may either:

cancel the contract, recover any performance already made on their side and claim
damages in respect of losses suffered due to the non-fulfilment of the contract such as
wasted expenses and loss of profit

abide by the contract, perform their side of the agreement and claim damages in lieu of
performance from the debtor

If the creditor is the one who had rendered performance by the debtor impossible, the debtor
may either:

cancel the contract, restore any performance already made by the creditor and claim
damages for non-fulfilment of the contract

abide by the contract and claim counter-performance from the creditor, subject to a
reduction of the claim by the amount that they saved by not having to perform their side

Partial impossibility

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 Where performance is rendered only partially impossible through the fault of the debtor, the
position of the creditor depends on the materiality of the breach
If the impossibility attaches only to a minor aspect of the performance, the contract as a
whole may not be rescinded and the only relief available to the creditor is a reduction in their
counter-performance, where practicable, or a claim for damages in lieu of the missing part of
the debtor’s performance
If the breach is material, the next issue is whether the performance in question is divisible or
indivisible

If divisible, the breach is committed only in respect of that part of the contract that has
become impossible to perform. The creditor may thus only pro tanto, in which case their
own counter-performance will be reduced proportionately. If the counter-performance is
not capable of such a pro rata reduction, they may cancel the entire contract of accept the
part-performance and recover damages in lieu of the shortfall

If the breach is indivisible, the effect is the same as in the case of complete impossibility

Temporary impossibility
Where the contract is of an ongoing nature, such as a service contract, temporary
impossibility of performance amounts to partial impossibility
In some cases, temporary impossibility will constitute either mora debitoris or creditoris,
depending on which party is to blame for the delay

A debtor who culpably prevents themselves from performing on time lapses into mora when
the time for performance arrives, provided that performance at a later stage remains possible.

If performance is no longer possible at all or the nature of the obligation is such that late
performance is worthless and thus tantamount to no performance, the impossibility is
permanent and the form of the breach is prevention of performance

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