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    Temporary Supervening Impossibility

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    Franklin Mbiriri
    Temporary supervening impossibility refers to when performance of a contract becomes temporarily impossible due to unforeseen circumstances. [1] It suspends the obligations of the parties for the duration of the impossibility rather than terminating the contract. [2] However, if the impossibility lasts for an unreasonably long period and substantially impacts the contract, either party may terminate the agreement. [3] Common examples of temporary supervening impossibility include an employee's illness or the removal of an organization's office bearers.

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    Temporary Supervening Impossibility

    Uploaded by

    Franklin Mbiriri
    195 views2 pages
    Temporary supervening impossibility refers to when performance of a contract becomes temporarily impossible due to unforeseen circumstances. [1] It suspends the obligations of the parties for the duration of the impossibility rather than terminating the contract. [2] However, if the impossibility lasts for an unreasonably long period and substantially impacts the contract, either party may terminate the agreement. [3] Common examples of temporary supervening impossibility include an employee's illness or the removal of an organization's office bearers.

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    Research on instances where a contract becomes impossible to perform but for a limited duration

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    Temporary supervening impossibility refers to when performance of a contract becomes temporarily impossible due to unforeseen circumstances. [1] It suspends the obligations of the parties for the duration of the impossibility rather than terminating the contract. [2] However, if the impossibility lasts for an unreasonably long period and substantially impacts the contract, either party may terminate the agreement. [3] Common examples of temporary supervening impossibility include an employee's illness or the removal of an organization's office bearers.

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    © All Rights Reserved
    Download as DOCX, PDF, TXT or read online from Scribd
    Download as docx, pdf, or txt
    195 views2 pages

    Temporary Supervening Impossibility

    Uploaded by

    Franklin Mbiriri
    Temporary supervening impossibility refers to when performance of a contract becomes temporarily impossible due to unforeseen circumstances. [1] It suspends the obligations of the parties for the duration of the impossibility rather than terminating the contract. [2] However, if the impossibility lasts for an unreasonably long period and substantially impacts the contract, either party may terminate the agreement. [3] Common examples of temporary supervening impossibility include an employee's illness or the removal of an organization's office bearers.

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    Temporary supervening impossibility

    1. Temporary supervening impossibility is recognized in South African law, the effect, however is
    that it suspends the obligations of the parties until the impossibility lapses. The impossibility,
    however, should not be unreasonably long.

    2. In World Leisure Holidays (Pty) Ltd v Georges   2002 (5) SA 531 (W) the court was asked
    to consider the effect of temporary supervening impossibility of performance on the
    obligations of the parties under a contract. On appeal, Cloete J found that temporary
    impossibility of performance does not of itself bring the contract to an immediate end. Only
    where the foundation of the contract has been destroyed, or where all or part of the
    performance is already (or would inevitably become) impossible, is the creditor entitled to
    regard the contract as having ended.1

    3. Supersonic Tours (Pty) Ltd v South African Taxi Council [2001] JOL 9031 (T)

    It is common cause that the defendant is a voluntary association with a legal persona. It
    functions through its office bearers. With the removal from office of its functionaries it is
    temporarily impossible for it to function. No one can consider or deal with its affairs. This
    impossibility is an objective one. The impediment is in consequence of an order of court.

    The concept of temporary impossibility is recognized by our law as suspending performance in a


    contract. In the article "Temporary Supervening Impossibility of Performance", 94 South African
    Law Journal (1977) 162 at 170 professor WA Ramsden expresses the following view:

    "Temporary impossibility neither terminates an obligation nor gives rise to a right to terminate
    an obligation. It merely suspends the duty to perform the obligation thus rendered temporarily
    impossible while the impossibility continues."

    The below are labour law cases:

    4. Mokoatle v Commercial Industries National Provident Fund and Others (1) [2002] 1 BPLR 2989
    (PFA) at para 24 – 25

    An employee’s absence from work due to illness is normally regarded as a form of temporary
    supervening impossibility of performance. As with all temporary supervening impossibility,
    because non-performance is due to factors beyond the employee’s control, there is no breach of
    the obligation to work and the operation of the contract is merely suspended for the duration of
    the impossibility.

    The contract itself, in its essential incidents, remains valid and in force. However, if the
    impossibility lasts for an unreasonably long period, and is material or substantial, either party

    1
    may terminate the contract, provided the decision to terminate is communicated to the other
    party: Brassey: The Effect of Supervening Impossibility of Performance on a Contract of
    Employment; 1990 Acta Juridica 22 at 37; Joubert v Bester 1977 (4) SA 560 (T).

    5. Rycroft and Jordan: A Guide to South African Labour Law at page 91

    Where a contract has become totally and objectively impossible of performance after its
    conclusion, the general rule is that the contract is discharged automatically, and that no further
    liability for future performance or damage arises. If, on the other hand, the impossibility of
    performance is only of a partial or temporary nature, discharge is not automatic.

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