Where, of course, other terms in the contract
introduce language which would lead the Courts to
consider that the parties to it did plainly contract
that if a state of things, which could be described
by either " commercial impracticability " or " com-
mercial impossibility," should come into existence,
then there should be an excuse for non-performance
of obligations thereunder, no doubt such terms would
be considered as affording an. excuse, but such excuse
would depend on the facts fitting the agreed terms
and not on any doctrine — if doctrine it be — of
"commercial impossibility."

A good illustration of the submission just made is
contained in the following decision of Bailhache J. upon Kise in
the point as to whether a rise in freights can amount reig



270 The Law of War and Contract
General to a prevention of fulfilment of a contract to deliver

Princi- x

pies. oversea goods with a clause in the contract excepting

Com. deliveries " in case of war " : —

mercial
impossi-
bility. " I am of opinion that there may be such a rise m
freights due to war as to entitle a seller who has to
Rise in pay freight to say that he was thereby prevented by
freights. war from making delivery. The expression ' rise in
freights ' in this connection, and in this case in par-
ticular, really means that war has caused a scarcity of
ships for commercial purposes of which the rise in
freights is at once the sign and the measure. Scarcity
of ships due to war and rise of freights due to war are
interchangeable expressions, but as the thing that
matters to a seller who is seeking a ship to enable him
to make delivery is the price he must pay for her, he
more usually speaks of the rise in freights. It would
simplify matters to say that no rise in freight can
amount to prevention of performance, but I think
that. is impossible in a case where rise in freights due
to war connotes scarcity of ships due to war. Suppose
that all British ships were commandeered by the
Admiralty, leaving only neutral ships for private
commerce. 