Objective and subjective impossibility of performance: controversy and inaccuracies

Abstract

Although widespread, the classification  of the impossibility of performance as  objective and subjective is problematic. It is  marked by, at least, one controversy and two  inaccuracies. A first inaccuracy is that this classification is used interchangeably with another  one which is different, that of absolute and relative  impossibility. The controversy concerns the legal relevance of subjective impossibility, that  is, whether it is able to release the debtor from  the agreed duty of performance. The arguments  that support both lines of understanding are not  sufficiently convincing, and the answer must be  constructed from an interpretation attentive to  the legal regulation. Finally, the second inaccuracy  is that scholars and courts implicitly tend  towards a broad conception of subjective impossibility,  and the Civil Code enshrined the restricted  conception.