790 HARVARD LAW REVIEW unlawful was indeed recognized both by courts and by text- writers/ but the cases in which governmental action had had this effect were comparatively rare. A somewhat different situation existed during the period of active warfare. Since the war was to an unprecedented extent an industrial as well as a miHtary one, the control exercised over the industries of the country in the interest of war-making was of a sort for which no precedent can be found in the history of previous conflicts in which this country has been engaged. To some extent this was accomplished through the medium of regulations issued under some federal statute authorizing the executive to prohibit certain forms of business activity, such as hoarding of foods, ex- porting or importing without a license, etc., deemed to be detri- mental to effective war-making. Such statutes and regulations may present important legal problems with regard to the scope of the war power, the right to delegate legislative power and the like, but they do not involve the question with which this article is concerned, namely, that of governmental prevention as con- trasted with governmental prohibition. Prevention, rather than prohibition, was however, in the main, the order of the day. Thus while it was illegal to hoard food or to trade with the enemy, it was, although not illegal, in general im- possible to buy or sell toluol or wool, substantially the entire supply of which was taken over by the government, or to fill orders for articles deemed nonessential where these articles couldlnot be pro- duced without large quantities of raw materials of a kind urgently needed for war purposes. It is with such cases of impossibility that we have to deal. Impossibility of performance is, in general, recognized by our law as an excuse for failure to perform a contract in a limited class of cases only, impossibility in law being by no means coextensive with impossibility in fact.^ How far, if at all, these limits should be extended by judicial decision where the impossibility is due to the act of the government, of which the judiciary is itself a part, ^ See WiLLiSTON on Sales, § 66i, and cases cited.
- Impossibility of performance has been recognized as a defense where due (i) to
a change in the law; (2) to death or illness in contracts requiring personal service; (3) to a destruction or change in the character of the goods to which the contract relates; (4) to a failure of the contemplated means of performance, the limits of this latter doctrine being very ill-defined. See Williston on Sales, § 661.
