1 Dig. 50, 17, 202 (Iavolenus): “Omnis definitio in iure civili periculosa est: parum est enim, ut non subverti posse”.

2 [1903] 2 K.B. 740.

3 Ibid. at p. 751.

4 See, for instance, Winfield, (and others), Jenk's English Civil Law (4th ed., 1947) vol. 1, p. 93et seq.Google Scholar

5 Per Simon, Viscount in Joseph Constantine Steamship Line Ltd. v. Imperial Smelting Corp. Ltd. [1942] A.C. 154, 164Google Scholar. And see Viscount Maugham, ibid. at p. 172.

6 Salmond, and Winfield, , Law of Contracts (1927) 306Google Scholar; Salmond, and Williams, James, Principles of the Law of Contracts (1945) pp. 508et seq., 521Google Scholar; Corbin, , “Frustration of Contract in the U.S.” (1947) 29 J. Comp. Leg. and I.L. 1, 5.Google Scholar

7 McElroy, and Williams, Glanville, “The Coronation Cases” (1941) 4 Mod.L.R. 246, 248–49Google Scholar; Impossibility of Performance (Cambridge, 1941) xxxii, 88 et seq.; Williams, Glanville, The Law Reform (Frustrated Contracts) Act, 1943, (1944) 8, 22.Google Scholar

8 Gutteridge, H. C., “Contracts and Commercial Law” (1934) 51 L.Q.R. 90, 109.Google Scholar

9 (1863) 3 B & S. 826.

10 Another possibility is that the contract was conditional. A proponent of this view is Pollock who states that it alone can justify the decision and thinks that under it, if after cancellation of the coronation the hirer were nevertheless interested in performance of the contract for sightseeing in London, the owner could oppose it: (1904) 20 L.Q.R. 3. Obiter the view is expressed in the judgment that the contract “is a licence to use the rooms for a particular purpose and none other” (ibid,, at p. 750) and that “if the king […] had died, the hirer could not have insisted on having the rooms on the days named” (at p. 751). But see contra McElroy and Glanville Williams in Mod.L.R. cit. supra n. 7, at p. 253.

11 The American courts have applied such a view to other instances: Patterson in (1942) 42 Colum.L.R. 903, 951. See Parrish v. Stratton Cripple Creek Mining & Development Co. 116 F (2d) 207 (C.C.A. 10th 1940), cert, denied, 312 U.S. 698 (1941) (contract for hauling all ore produced on defendant's land and “destined” for a specified mill, which was later closed because of the bankruptcy of the company operating it; the decision that the defendant was excused may be taken to mean that the plaintiff could no longer perform his promise to haul ore “destined” for the mill); Alfred Marks Realty Co. v. Hotel Hermitage Co. 170 App. Div. 484, 156 N.Y. Supp. 179 (2nd Dep't. 1945) (duty to pay for an advertisement in a yacht race programme was held to have been discharged by the fact that the intervention of war caused the races to be called off; the promise of “publication” was interpreted to include the distribution of the programme at the yacht races, and hence he could not substantially perform).

12 In Mod.L.R., cit. supra n. 7, at p. 249. Along the same lines, see Smith, J. W., Leading Cases (13th ed., London, 1929) vol. II, p. 615 (sale of view)Google Scholar; Flume, , Allg. Teil d. Bürgerl. Rechts, II Rechtsgeschäft (1965) vol. 2, p. 499Google Scholar; Id., Eigenschajtsirrtum und Kauf (1948) 73; Id., “Rechtsgeschäft und Privatautonomie” in Hundert Jahre Deutsches Rechtslebens (1960) vol. 1, pp. 135, 214; Reichel, , Vetragsrücktritt wegen veränderter Umstände (Berlin, 1933) 16–17Google Scholar (who goes as far as to compare the contract concerned with the purchase of a ticket for the opera); Martorano, , “Presupposizione ed errore sui motivi nei contratti” (1958) IV Riv. dir. civ., 69, 90, 94.Google Scholar Along different lines, in distinguishing the given case from that of impossibility of performance: Oertmann, , Die Geschäftsgrundlage (1921) 26Google Scholar; Schmidt-Rimpler, , “Zum Problem der Geschäftsgrundlage” in Festschrift für Nipperdey (1955) vol. 1, p. 15Google Scholar; Rheinstein, , Die Struktur des vertraglichen Schuldverhältnisses im anglo-amerikanischen Recht (Berlin, 1932) 177–78CrossRefGoogle Scholar; Reu, , Die Unmöglichkeit der Leistung im anglo-amerikanischen Recht (Stuttgart, 1935) 15et seq.;Google ScholarPisco, , in Klang, , Kommentar z. Allg. Bürg. Gesetzbuch (Wien, 1934) vol. 11(2) 351, 599Google Scholar; Enneccerus-Nipperdey, , Allgemeiner Teil d. Bürg. R. (1959) vol. 1, pp. 752–53Google Scholar; Lehmann, H., Allg. Teil (15 Aufl., 1966) §35 A VIIGoogle Scholar; Locher, , in 121 Arch. f. die Ziv. Praxis 55Google Scholar; Larenz, , Geschäftsgrundlage und Vertragserfüllung (3. Aufl., 1963) 74Google Scholar; Colesanti, , in (1958) lus 392, 409Google Scholar; Pietrobon, , L'errore nella dottrina del negozio giuridico (Padova, 1963) 506et seq.Google Scholar

13 See Fibrosa Spolka Akcyjna v. Fairbairn Lawson Combe Barbour Ltd. [1943] A.C. 32, 68.

14 Ibid. at p. 754.

15 Ibid. at p. 748: “fulfilled”; “fulfilment”.

16 [1904] 1 K.B. 493, 498.

17 Cf., for example, Salmond and Winfield, loc. cit.: “Supervening impossibility of the fulfilment of the purposes with which the contract was made”; Cheshire, and Fifoot, , Contract (7th ed.) 508Google Scholar: “Literal performance may still be possible, but nevertheless it will not fulfil the original and common design of the parties”. (And in more direct reference to Krell v. Henry, 2nd ed., 1949 at p. 414); Salmond and J. Williams, loc. cit.; Williston, Contracts (rev. ed.) vol. 6 §1953–54 (“destruction of the value of the contract”).

18 (1647) Aleyn 26.

19 Trib. com. Rouen, 28.8.1843; Rouen, 9.2.1844, D.P. 1845, 2.4. In connection with two German judgments in which impossibility of performance was involved, the question being apparently frustration of purpose for the hirer, see the observation of Kriickmann, Clausula rebus sic stantibus etc., 1918 (Sonderdrück aus 116 Arch. Ziv. Pr., 122); Larenz, op. cit. at pp. 97, 151.

20 See also Belcrovitz v. Pitman's Commercial School and others, 74 P.M. 189 which is considered infra part 3.

21 Excluding the Prussian Code (ALR) of 1794, § 378 et seq., which is very detailed. See also the Austrian Code, § 936 regarding Vorvertrag.

22 Hereafter referred to as the Remedies Law. For comment on and the full text of the Law in English see Shalev, G., “Remedies on Anticipatory Breach” (1973) 8 Is.L.R. 123.Google Scholar

23 Yadin, U., The Law of Contracts (Remedies for Breach of Contract), 1970 in the series Commentary on Laws Relating to Contracts, ed. Tedeschi, G. (1973, in Hebrew) 124.Google Scholar

23a See also Zeltner, , Law of Contracts of the State of Israel (1974, in Hebrew) 261.Google Scholar

24 Ibid. at p. 123.

25 This section must be deemed repealed by the Contract for Services Law, 1974.

26 Or when the event preventing performance prevents also the attainment of the desired benefit: the death of an animal in an accident, which a shohet had to slaughter for an orthodox Jew.

27 See infra part 9.

28 See infra part 17.

29 Cited supra n. 20.

30 [1904] 1 K.B. 493.

31 The Fibrosa case: see supra n. 13.

32 Law Reform (Frustrated Contracts) Act, 1943.

33 See, e.g., Salmond and J. Williams, op. cit. at p. 526; McElroy and Glanville Williams, Impossibility of Performance, cit. supra n. 7, at pp. 97, 221 et seq.

34 See infra part 12.

35 Such disproportion does not itself have any legal effect whether it occurs after the contract was made or already existed at that date. With regard to the first case, sec. 14(d) of the Law of Contracts (General Part), 1973, states that “a mistake as to the expediency of the transaction” is not a mistake. Limitation of this non-effect arises when the (original) non-equivalence rests on other elements (“extortion” under sec. 18 of the Law, sec. 14 of the Standard Contracts Law, 1964). As for later events, they are to be considered in as far as they cause a deterioration of the promisor's position making performance “different” within the meaning of sec. 18 of the Remedies Law; but not if their effect is purely and simply non-equivalence.

36 See infra part 17.

37 See infra part 8.

38 See infra part 15.

39 See infra part 16.

40 Larenz, , Geschäjtsgrundlage und Vertragserfüllung (3. Aufl., 1963) cit. at p. 95.Google Scholar

41 Cf. the two American judgments cited supra n. 11 and the case tried in Germany in RGZ 62, 267, concerning a revolving door, according to the variation hypothetically made in the contract concerned by Larenz, op. cit., at p. 96.

42 Tamplin Steamship Co. v. Anglo-Mexican Products Co. [1916] 2 A.C. 397.

43 [1939] 1 A.C. 132.

44 Windscheid, , Die Lehre des röm. Rechts von der Voraussetzung (Düsseldorf, 1850)Google Scholar; “Die Voraussetzung” in (1892) 78 Arch. f. die Ziv. Praxis 161 et seq.

45 Oertmann, , Die Geschäftsgrundlage (1921)Google Scholarcit. supra n. 12.

46 Locher, , “Geschäftsgrundlage und Geschäfgtszweck” in 121 Arch. f. die Ziv. Praxis 1.Google Scholar

47 One instance may be seen in the “express mail delivery” case in the Rouen court; see supra part 1. Another is that reported in RGZ 169, 263 (see Larenz, op. cit. at p. 135): a man transferred his business to his wife in order to avoid its possible attachment by his creditors but then divorced her because of her adultery. The court accepted the claim of the man for the return of the property, although it required him to make some indemnity, because of the special circumstances. On the other hand, we do not find any frustration of a common purpose (as the court held—RGZ 1, 109—and as Larenz, op. cit. at p. 93, thinks) in another German case.

48 Krückmann, , “Die Voraussetzung als virtueller Vorbehalt” in (1929) 131 Arch. f. die Ziv. Praxis 45et seq.Google Scholar

49 Larenz, op. cit.

50 Cf. in this regard the formula of Kegel, , “Gutachten für den 40. Deutschen Juristentag” in Verhandlungen des 40. Deutschen Juristentag (1953) vol. 1, pp. 135Google Scholaret seq., 233, who suggests that when frustration affects one party, the other should bear a proper part of the loss.

51 See Larenz, op. cit. at p. 133; among others: Enneccerus-Nipperdey, op. cit. at p. 753.

52 See infra part 21.

53 Such as per Lord Parker in the Tamplin case, supra n. 42 at p. 422: “This principle is one of contract law depending upon some term or condition to be implied in the contract itself and not on something entirely dehors the contract which brings the contract to an end”.

54 An exception is the case where there is ius cogens providing for the ceasing of the contract or the right to be released from it, despite any other contractual provision. That would be the case with giving up an agency under Israel law: see infra, part 16.

55 See Cheshire, and Fifoot, , Law of Contract (5th ed., 1960) 467.Google Scholar (The passage is omitted in later editions). It is not to be inferred from this uncertainty that the court was wrong in its judgment but possibly it constitutes a reason for enabling the judges to award some indemnity to the party whose interest has been sacrificed for the benefit of the other.

56 For the rejection of this consideration as reason for dissolution of the contract, see Reichel, , Vertragsrücktritt wegen veränderter Umstände (Berlin, 1933) 15Google Scholar, who mentions that the Supreme Court in Germany was previously for this consideration but later changed its mind.

57 See the two Scottish cases: Tay Salmon Fisheries v. Speedie, 1929 S.C. 593 (fishery rendered incapable of beneficial possession as a result of Air Ministry by-laws converting part of the area into a danger zone for bombing practice; the tenant was entitled to abandon the unexpired portion of a nineteen-year lease); Mackenson v. Boyd, 1942 S.C. 56 (furnished house requisitioned by military authorities). See also the American case of Greti Bros. v. Mabson 179 Ala. 444, 60 So. 876 (1913).

58 See e.g., the Swiss, Elektrizitätswerke case: ATF 1922 II, 366Google Scholar; and the Italian Degli Innocenti-Falsettini case: Cassaz., 19.4.1974, Foro Padano, 1974, I, 267.

59 Le Cumbre Golf and Country Club v. Santa Barbara Hotel Co. 205 Cal. 422, 271 Pac. 476 (1928).

60 See Belcrovitz, supra n. 20. For the death of the original promisee, see infra part 15.

61 See Viterbo v. Friedlander 120 U.S. 707, S. Ct. 962 (1887); Waite v. O'Neil 76 Fed. 408 (1896); Moving Picture Co. v. Scottish Union and Nat. Ins. Co. 244 Pa. 358, 90 Atl. 642 (1914).

62 A number of German judgments during the Second World War dealt with leases of the restaurants or bars of dancing halls and night clubs, at a time when such use was prohibited. They treated the forbidden use as contractually designated and because of its frustration dissolved the contract; RG 87, 277; 88, 96; 89, 203. Similarly, a lease for the storage of benzine was held to be at an end when all benzine was confiscated as a war measure: RG 94, 267. In France, as against judgments during the First World War which denied dissolution in similar cases, see the observations of Planiol et Ripert, , Traité pratique de droit civil français, vol. 6 (2nd ed. by Esmein, ), no. 394, p. 533.Google Scholar

63 By way of example we may cite a decision of the West German Federal Supreme Court in a matter affecting the siege of Berlin in 1948 (BGH: Lindenmaier — Mòhring, para. 242 (Bb) No. 12, 116, 122, 151, 180), which concerned the sale of drilling machines, the vendor knowing that it was the buyer's intention to sell them to an East Berlin importer, the only market being there. The siege intervened. The Court was of the opinion that the very basis of the sale was undermined and remitted the case to the lower court in order to adapt the contract to the changed circumstances as might be fair. The decision has been subjected to sharp criticism by Flume, , “Rechtsgeschäft und Privatautonomie” in Hundert Jahre Deutsches Rechtsleben (ed. Caemmerer, von, Friesenhahn, , Lange, ; Karlsruhe, 1960) vol. 1, pp. 135, 220 et seq., Cf. etiamGoogle Scholar Larenz, op. cit. at pp. 152–53. See also, for instance, RGZ 91, 84 (lease of a shop in a place designated for bathing for a period when access was forbidden to visitors).

64 See Albaranes v. Schmetterling (1948) 1 P.E. 72. To the contrary see Palwoodma v. Majdalani (1937) 4 P.L.R. 271, (1937) S.C.J. 268, involving a tenancy in an area in Haifa to which there was no access for Jews after riots.

65 See Yeshivat Hebron v. Hai Abdel el Khatib, 8 Rotenberg 543.

66 Tuhr-Siegwart, Von, Allg. Teil des Schweiz. Obligationenrechts (2. Aufl., Zurich, 1942) 278, n. 46.Google Scholar

67 See infra part 15.

68 Ordinarily the matter comes to expression in the negotiations leading to the contract, but it is certainly possible that the seller will know, for example, what use the buyer intends to make of the goods (such as resale to another who has greater interest therein) and therefore obtain a better price although nothing is said in the negotiations of the intended use. Since we do not regard the outcome of frustration of purpose as deriving from the contract, we do not postulate any decisive difference in such circumstances of silence.

69 See e.g., the Italian case decided by Cass. civ., Sept. 17, 1970, n. 1512, Giurispr. ital., 1972, I, 1, 211, dealing with a contract in which A undertook to sell to B a plot of land alongside which the parties thought a road was to be built. They provided in the contract that the plot must lie alongside the road and therefore should be extended or reduced as might be necessary, with a variation in price. Contrary to their expectations, they learnt subsequently that the laying of the road required the compulsory acquisition of the entire plot. The court held that the contract was dissolved because the parties' assumption had gone completely. Cf. on the other hand, the Swiss decision BGE 95, II, 407 (infra part 11).

69a See the Italian case Degli Innocenti-Falsettini (supra, n. 58): on the sale of a market stall for vending drinks, the seller agreed to renounce his licence in order that the buyer could obtain it in his place. Subsequently the competent authority refused to grant the licence to the buyer. It was held that the contract was discharged.

70 See, e.g., the West German case in OLG Bremen (NJW 1953, 1393). A hall was let for the appearance of a well-known actress in consideration of a 15% interest in the proceeds with a minimum rent. Because of an accident the actress could not appear. The court released the hirer from paying the minimum rent. See on this decision the different views of Larenz, op. cit, at p. 151; Flume, , “Rechtsgeschäft und Privatautonomie”, cit. at p. 217Google Scholar; Esser, , Schuldrecht (4. Aufl. 1971) vol. 1, p. 226Google Scholar; Kegel, op. cit. supra n. 50 at pp. 135, 219.

71 Cheshire, and Fifoot, , Law of Contract (5th ed., 1960) 467Google Scholar assume that if Henry on the making of the contract had required cancellation in the event of the Coronation not taking place, he would have been met with the answer: “You must take your chance of that”. (The passage does not appear in later editions). Cf. Gordon, D. M., Note (1936) 52 L.Q.R. 324.Google Scholar

72 On the distinction between Gewerbetreibenden and Privatpersonen in this regard, cf. Lange, , “Ausgangspunkte, Wegen und Mittel der Berücksichtigung der Geschäftsgrundlage” in Festschrift für Gieseke (1958) 21, 32 et seq.Google Scholar

73 It may be assumed that this consideration was not foreign to the Swiss court in Elektrizitätswerke, supra n. 58, involving the fate of a contract for the supply of electricity to a factory after it had been burnt down. The judgment was in favour of the consumer.

74 Lenel, in 74 Arch. f. die Ziv. Praxis 213 et seq.; cf. etiam Larenz, op. cit. at p. 6.

75 See Atiyah, , An Introduction to the Law of Contract (1961) 138Google Scholar, hinting at London & North Eastern Estates Co. v. Schlesinger [1916] 1 K.B. 20. Cf. the American case Greil Bros. v. Mabson, supra n. 57, where in view of the impossibility of reaping any benefit from the lease, the tenant's duty to pay rent was discharged, whereas in the absence of entire uselessness it was held otherwise in Imbeshied v. Lerner 241 Mass. 199, 135 N.E. 219 (1922); Plaza Amusement Co. v. Rothenber 65 Fed. 2d 254 (1933 C.C.A.); Brown v. Oshiro 68 Cal. App. 2d 393, 156 Pac. 2d 976 (1945). In contrast to cases such as these, in Krell v. Henry no sub-letting was possible in point of law and in any event as a matter of business in view of the circumstances. The consideration whether or not the frustrated benefit was the promisee's sole benefit was also present in the case of Herne Bay Steam Boat Co. v. Hutton [1903] 2 K.B. 683, which was decided in a direction opposite to Krell v. Henry by the very same judge, Vaughan Williams L.J. Even in this respect there is a contrast between the case envisaged in art. 443 of the Mejelle and the example given by Lenel, mentioned above.

76 See Lange, loc. cit.

77 Ibid.

78 According to this it is possibly desirable to deal with cases such as that in the example given above, regarding the purchase of furniture on the marriage of a daughter which did not take place, and such as the following: A farmer bought some cattle for his farm but then sold it before they were delivered to him (see 24 Striethorsts Archiv für Rechtsfälle des Königlichen Obertribunals 302 and Larenz, op. cit. at p. 94). In the latter, §381 of the Prussian Code was applied. The position of reducing the obligation of the buyer to the payment of compensation—when the rule as to mitigation of damage will apply to the seller—can be taken in Israel law in reliance on sec. 3 (4) of the Remedies Law.

79 See infra part 16.

80 See infra part 12.

81 See supra part 7.

82 Cf., Larenz, op. cit. at p. 93.

83 See for instance, the Standard Contracts Law, 1964, sec. 15(3) and the Restrictive Trade Practice Law, 1959, sec. 2.

84 It should be observed that expressions like “mistaken motive” would seem to indicate that a party erred in appraising the motive, but it is not so. Further, it may be gathered from this expression that only the circumstances to which it relates can move a party to enter into a contract; but it is clear that a “fundamental mistake” also (such as error in corpore and the like) is to be treated as an erroneous fact operating as a motive to a party.

85 The Explanatory Notes of the Bill of the Law were in the same spirit. Cf. Zeltner, , The Law of Contracts of the State of Israel (1974, in Hebrew) 187.Google Scholar

86 The effect of mistake as to a basic assumption not affecting the subject matter of the contract is to be found in the Talmud, Ketubot 97a. See Warhaftig, S., “Mistake in the Law of Contracts according to Jewish Law” in Fifth World Congress of Jewish Studies, (Jerusalem, 1972, in Hebrew) vol. 3, pp. 159, 168.Google Scholar

87 (1871) L.R. Q.B. 597.

88 (1903) 19 T.L.R. 434 (“Missupposition of the state of facts”).

89 (1903) 19 T.L.R. 202.

90 G.P. 1932, 2, 367. Swiss law on its part rejects mistake of motive although it accepts mistake affecting “the foundation of the contract” (sec. 24 of the Code of Obligations). See the judgment of the Federal Court, BGE 95 II 407, the negative decision of which (regarding a house which the purchaser erroneously thought permitted him to build on the roof thereof and the vendor was party to this belief) has been criticized: Kramer, , “Eine Wendung der Rechtsprechung des Bundesgerichts zum Grundlagenirrtum?” (1970) Schweiz. Juristen Zeit. 177Google Scholar, and the editorial note at p. 180. As for a change in situation after the contract is made, see the judgment in Rogenmoser, ATF (1933) II, 377.

91 [1943] A.C. 32, 80. Lord Porter spoke of mistake causing the two contracts being “void ab initio”.

92 [1932] A.C. 161.

93 (1971) (II) 25 P.D. 679.

94 Lange, in (1958) NJW 623Google Scholar; and in Festschrift f. Gieseke, cit. at p. 39; Flume, , “Rechtsgeschäft und Privatautonomie”, cit. at p. 224.Google Scholar

95 Treitel, , Law oj Contract (3rd ed., 1970) 784.Google Scholar

96 See, as against this, § 672 BGB.

97 See however, as regards hire infra part 19, n. 109. For contracts of services, see sec. 1674 of the Italian Code, and sec. 379 of the Swiss Code of Obligations.

98 We raised this question when the Contracts (General Part) Law was still in the bill stage: “The Bill of the Contracts (General Part) Law and its Boundaries” (1972) 3 Mishpatim 105, 107. Prof. D. Friedman has gone still further in the same direction (without mentioning our observations): “The Provision regarding the ‘Autarky of the Law’ and the Problem of Lacunae in Recent Israel Legislation” (1974) 5 Mishpatim 91. The doubt we raised has with Friedman become patent rejection: he thinks that the said provisions did not change anything.

99 See the remarks of Prof. A. Barak on Friedman's note, Ibid. at p. 99.

100 See Farrow v. Wilson (1869) L.R. 4 C.P. 744; Graves v. Cohen (1929), 46 T.L.R. 121; McElroy, and Williams, Glanville, Impossibility of Performance, op. cit. supra n. 7 at p. 86.Google Scholar

101 Parker v. Ibbetson (1858), 4 C.B. N.S. 346; Crediton Gas v. Crediton U.D.C., [1928] 1 Ch. 447; Winter Garden Theatre v. Millennium, [1948] A.C. 173; Martin-Baker v. Canada Flight, [1955] 2 Q.B. 556; Re Spenborough U.D.C.'s Agreement, [1968] Ch. 139.

102 Meron, Y., “The Mejelle Tested by its Application” (1970) 5 Is.L.R. 203, 205–10.Google Scholar

103 See, e.g., secs. 1769–73 of the French Code, sec. 287 of the Swiss Code of Obligations, sees. 1635–37 of the Italian Code. These rules are in part even mandatory.

104 Pothier, , Oeuvres (Paris, 1831) vol. 6, Louage, nos. 144, 145.Google Scholar

105 Duvergier, , Droit civil français, vol. 2, nos. 149et seq.Google Scholar

106 See arts. 426 and 428 of the Mejellc.

107 Here the tendency in the Latin countries to allow sub-tenancies is at variance with the negative tendency in Germany.

108 See infra n. 113 for Israel Law.

109 See e.g., secs. 270 and 297 of the Swiss Code of Obligations, § 569 of the German Code, sec. 1614 of the Italian Code (most of them introducing certain limitations, according to the term of the tenancy and the last of them referring to the case where there is a clause against assignment). For denial of determination, see sec. 1742 of the French Code.

110 See e.g., secs. 269 and 291 of the Swiss Code of Obligations (with indemnity of the other party and only in relation to immovables); cf. the Swiss case of Rogenmoser, ATF (1934) II, 205.

111 Such as the transfer of a civil servant from one place to another: see, e.g., § 570 of the German Code, sec. 1613 of the Italian Code; or a change in contractual relationships effected by law or administrative economic regulation: sec. 1623 of the Italian Code.

112 Sec. 16 of the Hire and Loan Law: “The hirer shall not use the thing hired save as agreed: provided that if such use has not been stipulated as the sole use he may put the thing hired to some other use so long as this does not involve damage to the thing hired or burden the owner more heavily than agreed”.

113 Sec. 22, ibid.: “The hirer shall not without the consent of the owner transfer his right to possess and use the thing hired to another or sublet such thing: provided that if the owner does not consent to the transaction on unreasonable grounds or attaches unreasonable conditions to his consent, then (1) in the case of a hire of immovable property—the hirer may effect the transaction without the consent of the owner; (2) in the case of any hire—the Court may authorize the transaction on such conditions as it may see fit; in the case of a hire of immovable property, the Court may do so notwithstanding anything provided in the contract of hire”.

114 Sec. 4 of the Hire and Loan Law; sec. 39 of the Contracts (General Part) Law.

115 Stevenson v. Snow (1761), 97 E.R. 808.

116 Bermon v. Woodbridge (1781), 99 E.R. 497; Pritchard v. The Merchant's and Tradesman's Mutual Life Ass. So. (1858), 140 E.R. 885.

117 Tyrie v. Fletcher (1772), 2 Cowp. 666, 668; Treitel, op. cit. at p. 776.

118 Treitel, loc. cit.

119 Williams, Glanville, The Law Reform (Frustrated Contracts) Act, 1934 (London, 1944) 80–81.Google Scholar

120 Cf. the observations of Justice Cohn relating to cases such as these in (1965) (II) 19 P.D. 17, 25, dwelling on enrichment without consideration of insurance companies.

121 See supra part 4.

122 Greene, L. J. in Kulukundis v. Norwich Union Fire Ins. So., [1937] I K.B., at p. 18Google Scholar, also refers to impossibility of performance.

123 [1940] 2 K.B. 517.

124 See BGH LM Nr. 15 a 242 (Bd) BGB. Cf. Simon, Günter, Die Rechtsfolgen der gestörten Vertragsgrundläge (Marburg, 1969) 30.Google Scholar For some variation of the contractual conditions in Swiss case law, see Deschenaux, , “La revision des contracts en droit suisse” (1948) 30 (III–IV) J. Comp. Leg. and I.L. 55, 65–66.Google Scholar