Sunday, June 17, 2007
Posted by Jeff Lipshaw
I posed my question about the history of the "impossibility" provision in the California Civil Code to the AALS Contracts listserv, and got a number of responses, all of which point out the vast sea that is knowledge.
The provision is a relic of the [David Dudley] Field Code from the mid-nineteenth century. The Field Code was enacted by the New York legislature several times, but vetoed by the governor. A variant was adopted in California in 1872. The impossibility provision is still in force in California, Montana, North Dakota, Oklahoma, and Guam.
Tom Folsom (Regent, left) does me (us) the yeoman's service of a legislative history of the provision, courtesy of Scott Pryor (Regent, right). I won't repeat Tom's history here, except that the provision appears to be Field's derivation of a provision in the Napoleonic Code. (E-mail Tom if you want to follow up). But Tom concludes:
Finally, as to the question: "is there a metaphysician in the house?" -- don't get me started. But FWIW, consider, as to "impossible in the nature of things," e.g., Aristotle's advice (more than once, with different variations) (impossible in the nature of things: viz, men and women cannot, by wishing it to be so, immediately sprout wings and fly; therefore it is [translating roughly] stupid to waste ANY time thinking, arguing, or planning about how you might grow wings and fly home tonight after work, and even more stupid to study and debate which wings you would most like to grow; instead it is only sensible to think about things actually possible [well, things potentially actual, but you get my drift], like walking or riding home -- this sort of thinking about the nature of things as they really are, or potentially can be, would constitute a wonderful tonic against some of the sillier notions that pass for wisdom these days. Too bad more courts (lawyers, and ordinary folk) haven't picked up on the staggeringly simple common sense of good metaphysics.
This is a nice piece of pragmatism, but let me blur the binary "sprout wings and fly" with a real life example about the impact of this definition of impossibility (although not in contract law). Let us assume that Joe is using a chemical manufacturing process, in which he takes chemicals A, B, and C and catalyst X and creates chemical MNO. Mary has a "consisting of" patent that describes a process for changing chemical DEF into MNO, also using catalyst X. Mary sues Joe on the theory that within the reactor the only way for ABC to turn into MNO is for it first to turn into DEF, at least for a instance, before it changes into MNO. If we were to stop the reaction midstream, and look inside the reactor, at least in theory, we would find a chemical process going forward from point whose elements match precisely described by the claim of the patent. Nobody has ever actually isolated the instantaneous existence of DEF, but that's what organic chemistry tells ought to be happening. At least it's not impossible that it is happening.
My understanding is that patent law deals with this problem by saying, essentially, that a process occurring inside the chemical reactor instantaneously cannot be the basis for a chemical process patent infringement claim. But in our day of nanotechnologies, or microchips that are operating on the molecular level, it seems to me we could be writing contracts that draw distinctions on things that would have been thought outside of the nature of things in 1872. Or that contracts, being the imperfect models they are for controlling future contingencies, could be written now, and need to be interpreted in the future when something seemingly "common sense" impossible now is possible then.