Abstract
There are several fundamental contractual requirements which all contracts must comply with to attain legally recognition. One such requirement is that performance must be possible. Where performance is impossible at the conclusion of the contract, such contract will be void. There are occasions where performance that was possible at the conclusion of the contract subsequently becomes impossible due to an event or circumstance beyond the parties' control. The law makes provision for the defence of supervening impossibility of performance which excuses performance in instances where an event or occurrence, through no fault of the contracting parties, renders performance objectively impossible. The world keeps changing and with each change new “evils” present themselves and threaten the possibility of the performance of contractual obligations. The South African electricity crisis – commonly known as load shedding – is nothing short of an evil which threatens the performance of contracts. This study investigates whether the defence of supervening impossibility of performance can be successfully invoked in instances where load shedding impacts the ability of contractual parties to fulfil their obligations. The study proposes how the impact of load shedding may be addressed contractually to regulate the allocation of liability and the consequences of the contract in instances of load shedding.
Keywords: Supervening impossibility of performance, force majeure, vis maior, casus fortuitus, load shedding, contractual obligations