31.01.2013
Lex non cogit ad impossibilia
This legal maxim means that the law does not compel a man to do that which he
cannot possibly perform.
Historically, a person who entered a contract was bound to perform according to
his or her promised duties, regardless of whether it became impossible to do so.
Thus, early courts did not recognize the defence of impossibility of performance.
Courts noted that if the parties to a contract had desired to take into account any
events that may develop after they reached an agreement, then they should have
accounted for such contingencies in the contract.
As contract law developed and in response to increasing commercial activities,
courts began to recognize impossibility as a valid defence to an action for breach
of a contract. This defence did not normally apply if one party found it
unexpectedly difficult or expensive to perform according to the contract; rather, it
applied only when the basis or subject matter of the contract was destroyed or no
longer existed. In addition, the defence of impossibility became available only if
objective impossibility existed. Objective impossibility occurred when the
contractual obligation could not actually be performed. Objective impossibility is
often referred to by the statement "The thing cannot be done."
Examples:
(i)
If a musician promised to play a concert at a specific concert hall but the
concert hall subsequently burned down, it would be impossible to perform
according to the contractual agreement and the musician would be
excused from performing at that particular venue. Subjective impossibility
exists when only one of the parties to a contract subjectively believes that
she or he cannot complete the required performance. For example, if a
musician believed that he had not practiced sufficiently to perform a
successful concert, this belief would not excuse the musician from
performing the concert. The statement "I cannot do it" frequently refers to
the state of mind present in a case involving subjective impossibility.
(ii)
Section 10 of the General Clauses Act, 1897 provides that where law
directs that any proceeding must be taken – up in the court on a certain
day and the court is closed on that day, the proceedings may be instituted
on next working day of the Court.
The reason of this provision is
impossibility of carrying out the mandate of law on a holiday. Since no
proceedings can be filed in the court on a closed day, the law cannot
compel a person to institute the proceedings on that day.
Thus, the general rule is that a thing may be impossible to perform when it would
not be practicable to perform.
When a party raises the defence of impracticability, courts generally determines
three things:
(a)
first, whether something unexpected occurred after the parties entered the
contract;
(b)
second, whether the parties had assumed that this thing would not occur;
and
(c)
third, that the unexpected occurrence made performance of the contract
impracticable.
Some widely recognized occurrences that would normally provide a defence of
impracticability are the death or illness of one of the necessary parties, the
unforeseeable destruction of the subject matter of the contract (perhaps by an
"act of God"), or a supervening illegality.
It is a general rule which admits of ample practical illustration that impotentia
excusat legem: where the law creates a duty or charge and the party is disabled
to perform it, without any default in him and, has no remedy over, there the law
will in general excuse him: if performance of the condition of a bond be rendered
impracticable by an Act of Parliament the obligor will be discharged.
In case of Raj Kumar Dey And Ors. vs. Tarapada Dey And Ors.[(1987) AIR
2195] the Supreme Court examined the scope of a stay order on calculation of
time/limitation. In this case, an award could not be registered within the time
stipulated by the Registration Act owing to an interim injunction and an order
directing the award to be deposited in Court. The Supreme Court allowed the
entire period during which the stay order was in operation to be excluded while
applying the maxim lex non cogit ad impossibilia or the law does not compel a
man to do that which he cannot possibly perform.
Similarly, while dealing with a question as to whether an assessee can be
penalized for failure to carry out an act prior to its incorporation the apex court in
the case of Life Insurance Corp Ltd. vs. CIT [(1996) 219 ITR 410] observed
that it is obvious that the surplus or deficit in any inter-valuation period relating to
the Corporation which came to be formed only on the appointed day in 1956, this
amount could not be reflected since it related to a period prior to the formation of
the Corporation. The law does not contemplate or require the performance of an
impossible act - Lex non cogit ad impossibilia. The amount of refund of income
tax received by the Corporation during the inter-valuation period should be
allowed as a deduction while computing the income of the assessee under rule
2(1)(b) of the First Schedule to the Income tax Act, 1961.
While dealing with question as to whether an assessee can be liable to pay
interest for failure to pay advance tax during the year when the liability to pay tax
had arisen on account of amendment to law which took place after the end of the
year, Hon'ble Madras High Court in the case of CIT vs. Revathi Equipment Ltd.
[(2008) 298 ITR 67 (Mad)] reproduced and thereafter approved the reasoning of
the Tribunal that before the introduction of section 35DDA, the legal dictum was
very clear that the assessee could claim expenditure incurred on account of
payment made for the VRS by the assessee in view of the binding decisions of
the hon'ble jurisdictional High Court Therefore, till the introduction of new
provisions under section 35DDA, the assessee could have estimated the income
legitimately after reducing the expenditure incurred on the VRS. It is a common
knowledge that the Finance Bill is introduced on February 28, 2001, and the
same is made into the Act after passing the Bill in both the Houses of Parliament
and receiving the assent of the Hon'ble President of India somewhere in May or
June, which means till that date no assessee can visualize that a new liability
would be fastened to him. Normally, new provisions are introduced with effect
from the next assessment year, but this provision under section 35DDA was
introduced by Parliament in its wisdom with effect from April 1, 2001, i.e., the
same year and that is why difficulty has arisen for visualizing the liability and the
assessee could not deduct such expenditure. In fact in such situations the legal
dictum ad impossibillia would be attracted. The simple meaning of this dictum is
that 'law cannot compel you to do the impossible'. In this case the assessee
could not have visualized till the last instalment of advance tax, i.e., 15th March
2001, that it would not be entitled to deduct the VRS payments. Therefore, the
assessee could not have done anything other than to estimate the liability to pay
advance tax on the basis of existing provisions. Thus, it cannot be said that the
assessee was liable to pay advance tax. Once it is concluded that the assessee
was not liable to pay advance tax, there is no question of charging tax under
sections 234B and 234C.
In the case of, Escorts Ltd. vs. CIT [(2002) 257 ITR 468 (Del)], Hon'ble High
Court was concerned with claim of an assessee for grant of refund under section
244 of the Act, which was denied to an assessee by the revenue on the ground
that the assessee himself was responsible for delay of refund, and therefore
cannot claim the amount of interest. While considering the rights of the assessee
to claim interest, the Hon’ble High Court held 'Lex non cogit ad impossibilia' is a
well-known maxim. It means the law does not compel a man to do that which he
cannot possibly perform. If the Assessing Officer could not perform his duties to
complete the order of assessment in the absence of any evidence furnished by
the assessee, the Department cannot be blamed therefore.
A law cannot be interpreted in vacuum. It has to be interpreted having regard to
the facts and circumstances involved in each case.
In CIT. vs. Premkumar [(2008) 214 CTR 452 (All)] while dealing with the
question as to whether an assessee can be faulted for not declaring the amount
of capital gain on acquisition of land, when the amount of compensation itself is
not determined, the Court held that the assessee’s land was acquired and
possession of land was taken from the assessee on 23rd December 1983 i.e. A.Y.
1984-85, a small part of the compensation was received by the assessee during
1985-86 and the compensation award was given by the Collector/Land
Acquisition Officer on 18/9/1986 and the remaining compensation pursuant to the
said award was received by the assessee on 3/9/1987. The Court held that
'Lex Non Cogit ad impossibilia' is an age old maxim meaning that the law does
not compel a man to do which he cannot possibly perform. Requiring the
assessee to file a proper and complete return by including the income under the
head 'Capital gain' would be impossible for the assessee, in cases of the nature
referred above as the amount of capital gain would become known to him only
after the award has been given.
This Maxim has been recently applied by the Hon'ble Supreme Court in the case
of Krishnaswamy S.P.D. & Anr. vs. Union of India Others [(2006) 281 ITR 305
(SC)] wherein the following observations in relation to the provisions of chapter
XX-C of the Act were made:
The maximum of equity, namely, actus curiae neminem gravabit - an act of court
shall prejudice no man, is founded upon justice and good sense which serves a
safe and certain guide for the administration of law. The other relevant maxim is,
lex non cogit ad impossibilia - the law does not compel a man to do what he
cannot possibly perform. The law itself and its administration is understood to
disclaim as it does in its general aphorisms, all intention of compelling
impossibilities, and the administration of law must adopt that general exception in
the consideration of particular cases.
Ref. Also:
(i)
U.P.S.R.T.C. vs. Imtiaz Hussain [2006] 1 SCC 380,
(ii)
Shaikh Salim Haji Abdul Khagumsab vs. Kumar [2006] 1 SCC 46,
(iii)
Mohammad Gazi vs. State of MP [2000] 4 SCC 342
(iv)
Gursharan Singh vs. New Delhi Municipal Committee [1996] 2 SCC
459.