Pollard v. Shaffer
1 U.S. 210, 1 Dall. 210 (1787)
Rule of Law:
A lessee's general, express covenant to keep leased premises in good repair does not obligate the lessee to rebuild structures destroyed by a hostile army, as such an extraordinary event is not within the contemplation of the parties unless specifically stated.
Facts:
- A lease for a property was executed, which contained an express covenant requiring the lessee to keep the premises in good repair and to deliver them up in that condition at the end of the term.
- The lease was subsequently assigned to Shaffer.
- During the term of the lease, the British army, a public enemy, invaded the area and took possession of the demised premises.
- While occupying the property, the British army destroyed the buildings.
- The destruction of the premises occurred without any fault or negligence on the part of Shaffer.
- At the expiration of the lease term on March 1, 1778, Shaffer was unable to surrender the premises in good repair because they had been destroyed.
Procedural Posture:
- The plaintiff-lessor sued Shaffer, the assignee of the lease, in a Pennsylvania court of first instance.
- In defense, Shaffer pleaded the special matter that the leased premises had been destroyed by the British army, a public enemy.
- The court then considered the legal sufficiency of this defense to bar the plaintiff's claim for breach of the covenant to repair.
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Issue:
Does a lessee's express covenant to keep the leased premises in good repair and to surrender them in such condition obligate the lessee to rebuild when the premises are destroyed by a public enemy without any fault of the lessee?
Opinions:
Majority - McKean, Chief Justice
No. A general covenant to repair in a lease does not bind the tenant to rebuild premises destroyed by a hostile army. Such a covenant is construed to cover ordinary wear and tear and preventable damage, not extraordinary and irresistible forces like an act of God or a public enemy. To hold a tenant liable for such a catastrophic loss, the covenant must contain special and express words to that effect, as it cannot be presumed that either party contemplated or accepted such a risk. The court reasons that since the destruction was an act of a common enemy whom neither party could resist, principles of equity require the loss to be divided: the lessee loses the temporary profits of the premises, and the lessor bears the loss of the permanent structure. However, the court distinguishes this from the covenant to pay rent, holding that the lessee remains obligated to pay the rent for the term because it is a certain sum and the lessee accepted the risk of casual losses in exchange for the potential of casual profits.
Analysis:
This case is significant for introducing equitable principles into the interpretation of strict contractual covenants in early American law. It establishes a key exception to the common law rule that a party is bound by its express promises, creating a default rule for allocating risk in leases. The decision effectively imports a nascent doctrine of impossibility or frustration of purpose, excusing performance where an unforeseen, catastrophic event makes it impossible. This approach, which considers the presumed intent of the parties and fairness in allocating unavoidable losses, influenced the development of contract law by moving away from rigid textualism toward a more contextual and equitable interpretation.
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