res extincta

Latin · rayz ek-STINK-ta · Contract and commercial

Meaning. A thing that, unknown to the parties, had ceased to exist when they made the contract.

Where both parties contract on the mistaken belief that the subject-matter exists, when it has already perished, the agreement is void for common mistake of fact under s.20 of the Indian Contract Act, 1872. For goods, s.7 of the Sale of Goods Act, 1930 says a contract for the sale of specific goods is void if the goods, without the seller's knowledge, had perished or become so damaged as to no longer answer their description when the contract was made.

The classic English case is Couturier v. Hastie (1856), a cargo of corn that had already been sold off by the ship's master. If the goods perish after the contract but before risk passes, s.8 of the Sale of Goods Act (agreement to sell avoided) applies, which is frustration rather than res extincta.

Example

The horse had died the night before the sale was agreed, so the contract was void for res extincta under s.20.

In Indian law

Section 20, Indian Contract Act, 1872
Section 7, Sale of Goods Act, 1930
Couturier v. Hastie (House of Lords, 1856)

res extincta

Example

In Indian law

See also

Read more in the study notes