PHYSICAL POSSIBILITY

• Physical possibility to perform

  The agreement must be possible
• Agreement must be possible


  • Legal possibility
  • Physical possibility
• Physical possibility


  • The performance of rights and duties flowing from the agreement must be objectively possible at the time of the conclusion of the contract
  • Performance must be certain/ascertainable
  • It is impossible to perform something which has not been determined & is not determinable
• Objective possibility to perform

  • At the moment of concluding the contract it is objectively/ absolutely impossible to render performance
  • Only objective impossibility of performance renders the contract void
  • If performance is an inconvenience or difficult it is not objectively impossible to perform
  • If parties fail to perform in terms of the contract – it is a breach of contract
• Subjective impossibility vs objective impossibility


  • Objective/absolute impossibility to perform means it is impossible for anyone to perform in terms of the contract
  • Subjective impossibility to perform means that it is impossible for a specific person to perform but not impossible for other people who would have been in the same position
• Impossibility of performance


  • Supervening impossibility of Performance: performance becomes objectively impossible after the conclusion of the contract due to an external factor = TERMINATION OF CONTRACT & RESTITUTION TAKES PLACE
  • Initial impossibility: performance is impossible at conclusion of contract = no contract comes into being = VOID CONTRACT
  • Prevention of performance: performance is made impossible due to the fault of one of the parties = BREACH OF CONTRACT & CAN CLAIM REMEDIES FOR BREACH
• Divisibility of performance


  • If an indivisible performance is objectively impossible, no contract arises
  • If only a part of a divisible performance is objectively impossible a valid contract will still arise if the part that can still be performed
  • A performance is divisible if it is physically possible to render the performance in separate units
  • A performance is indivisible if it can only be rendered in one unit, i.e in its entirety
  • Divisibility is a legal concept – cannot change indivisible to divisible but can change divisible to indivisible
• Determined and ascertainable performance


  • Impossible to perform where the nature of performance is unclear or unambiguous, i.e not determined or ascertainable
  • Performance will be determined if the parties expressly mention the performance in the agreement
  • Where the debtor is authorised to perform a different specified performance if s/he chooses = facultative obligation
  • Ascertainable = at the time of concluding the contract the parties agree on a criterion or formula to identify performance
  • Alternate obligation – a party may select the performance which is due from two or more different alternatives
  • Generic obligation – determined by describing a kind of commodity in terms of number, mass or measure
• Facultative obligation


  Where the parties agree that A must deliver a specific performance to B, but A could deliver a different performance if s/he wants to
• Alternative obligation (performance of choice)


  Performance is selected from alternatives. A party is given the choice to choose the object of performance from alternatives within a reasonable period
• Facultative obligation


  • A plumber (debtor) agrees to install a specific toilet in Brad's (creditor) house. The parties agree that if the plumber cannot get the specific toilet, the plumber may install another similar toilet that he deems fit (similar toilet of similar value)
• Alternative obligation


  • John has two houses (Blue House and Red House). John wants to rent out a house to Pam. The parties agree that John may choose which house he rents to Pam and that Pam (upon the election) must rent that house