Court case(1863) 3 B & S 826

Caldwell agreed to let Taylor the Surrey Gardens and Music Hall for four days in the summer of 1861 for a series of grand concerts and fetes, at 100 pounds a day. Six days before the first concert the hall was destroyed by an accidental fire. Taylor, who had spent money on advertising and preparations, sued Caldwell for breach of contract.

Blackburn J held that Caldwell was not liable. Where a contract depends for its performance on the continued existence of a specific thing, the parties are taken to have contracted on the basis that the thing will continue to exist; there is an implied condition that both are excused if, before breach, performance becomes impossible through the perishing of the thing without the default of either party. The rule of absolute liability in Paradine v. Jane was thus qualified. Both parties were discharged.