Taylor v. Caldwell:
In the King's Bench
3 B. & S. 825 (1863)
Issue: May the parties be excused from a contract when the thing contracted for no longer exists?
Application: There was no express stipulation with reference to what would happen in the event of a fire.
-Where there is a positive contract to do a thing, not in itself unlawful, the contractor must perform it or pay damages.
-Where the parties have agreed that the contract cannot be fulfilled without the continued existence of a particular thing, that is not a positive contract, but subject to an implied condition.
-In some contracts where a personal good is contracted for (painting, composing a work, etc), and the ability is lost (blindness, etc), the promisor should not be forced to perform.
-The same implications are made for the continued existence of a thing, such as here.
-In contracts in which the performance depends on the continued existence of a given person or thing, a condition is implied that the impossibility of performance arising from the perishing of the person or thing shall excuse performance.
-May 27, 1861: Parties enter into agreement where defendant leases The Surrey Gardens and Music Hall to plaintiff for June 17th, July 15th, August 5th, and August 19th.
-Plaintiff alleged that defendant breached by not allowing the plaintiffs to have use of the building
-At the time of the agreement, there was a general custom of trade and business that in the event the building was destroyed or so far damaged by accidental fire as to prevent the concerts from being given according to the intent of the agreement, the agreement should be rescinded
-June 11: Music hall is destroyed by an accidental fire.
-Verdict for the plaintiff
-Verdict for the defendant