ElectronicjournalofcomparativELaw,vol.8.1(march2004),http://www.ejclorg doubtful whether the frustrating event must have been unforeseeable. 4 A significant difference is that frustration does not require an insurmountable obstacle as the alternative way will often constitute something radically different, 46 The immediate result concurs again: the debtor is freed from performance and any damages for non B IV German law: Impossibility a comparison with the german concept of impossibility only is less fruitful as the effect of an impossible performance under German law is entirely different. It only excludes the general claim for specific performance+7 notwithstand ing fault and foreseeability on the part of the debtor. The question whether the debtor has to pay damages is a matter of fault. The following example may illustrate this. A sold his Volkswagen Golf to B, but the car was destroyed before it was handed over. The destruction of the car only excludes bs claim of performance in forma specifica. With regard to damages, B's claim will only succeed if he can prove that a's culpable behaviour led to the impossibility. 48 Nevertheless we should take a look at the issue when german law considers an obligation to be impossible. 275(1)of the BGB applies to all types of impossibility objective, subjective and initial impossibility 50. Besides the relevance for initial Imped iments it corresponds with the notion in Article 8: 108 of an impediment; particularly excessively onerous performance is not covered.5 However, $$ 275(2)and(3)of the BGB cover changes in the equilibrium as well as cases where performance is owed in persona Viscount Simon LC and 195 per Lord Wright. However, there is Scottish authority: London Edinburgh Shipping Company, Ltd v Lords Commissioners of the Admiralty[1920]SC 309(IH) The classic approach was that unforeseeability was necessary: Walton Harvey Ltd v Walker& Homfrays Ltd [1931] 1 Ch 274(CA); see also post Davis Contractors, National Carriers Ltd v Panalpina (Northern)Ltd, n 37, 700; Paal Wilson Co A/S v Partenreederei Hannah Blumenthal( The Hannah Blumenthal)[1983]1 AC 854, 909. This was questioned in Ocean Tramp Tankers Corps v v0 Sovfracht('The Eugenia[1964 2 QB 226, 239(CA) per Lord Denning, WJ Tatem Ltd v Gamboa [1939]1 KB 132, 137f, McBryde, n 36, para 21-28: Treitel, n 6, para 13-001f 46 Treitel, n 6, para 12-017 Zimmermann, n 7, 286, W Emst, in K Rebmann(ed), Munchener Kommentar zum Buirgerlichen Gesetabuch, 4th edn(2001-),$275 para 3 48 There is some discussion on the question whether the non-performance itself can constitute a breach of contract in the case of impossibility or whether the breach can only be seen in the culpable behaviour. The prevailing view is the former approach; cf Munchener Kommentar/Ernst, n,$280 para llf Yet, subjective impossibility seems to differ from the former$ 275(2)as it demands to overcome some impediments; Munchener Kommentar/Ernst, n 47,$ 275 para 3. This, however, corresponds with Art 8: 108 Cf Zimmermann. n 7. 280f Cf Zimmermann. n. 282 8275(2)BGB; cfZimmermann, n 7, 281ff, and in German the extensive treatment by Munchen Kommentar/Ernst, n 47, $275 paras 69ff. Some remarks on$ 275(2)BGB are made below, last para of C.IV.Electronic Journal of Comparative Law, vol. 8.1 (March 2004), <http://www.ejcl.org/> 8 doubtful whether the frustrating event must have been unforeseeable.45 A significant difference is that frustration does not require an insurmountable obstacle as the alternative way will often constitute something ‘radically different’.46 The immediate result concurs again: the debtor is freed from performance and any damages for non￾performance. B.IV German law: Impossibility A comparison with the German concept of impossibility only is less fruitful as the effect of an impossible performance under German law is entirely different. It only excludes the general claim for specific performance47 notwithstanding fault and foreseeability on the part of the debtor. The question whether the debtor has to pay damages is a matter of fault. The following example may illustrate this. A sold his Volkswagen Golf to B, but the car was destroyed before it was handed over. The destruction of the car only excludes B’s claim of performance in forma specifica. With regard to damages, B’s claim will only succeed if he can prove that A’s culpable behaviour led to the impossibility.48 Nevertheless, we should take a look at the issue when German law considers an obligation to be impossible. § 275 (1) of the BGB applies to all types of impossibility: objective, subjective49 and initial impossibility50. Besides the relevance for initial impediments it corresponds with the notion in Article 8:108 of an impediment; particularly excessively onerous performance is not covered.51 However, §§ 275 (2) and (3) of the BGB cover changes in the equilibrium52 as well as cases where performance is owed in persona Viscount Simon LC and 195 per Lord Wright. However, there is Scottish authority: London & Edinburgh Shipping Company, Ltd v Lords Commissioners of the Admiralty [1920] SC 309 (IH). 45 The classic approach was that unforeseeability was necessary: Walton Harvey Ltd v Walker & Homfrays Ltd [1931] 1 Ch 274 (CA); see also post Davis Contractors, National Carriers Ltd v Panalpina (Northern) Ltd, n 37, 700; Paal Wilson & Co A/S v Partenreederei Hannah Blumenthal (‘The Hannah Blumenthal’) [1983] 1 AC 854, 909. This was questioned in Ocean Tramp Tankers Corps v V/O Sovfracht (‘The Eugenia’) [1964] 2 QB 226, 239 (CA) per Lord Denning, W J Tatem Ltd v Gamboa [1939] 1 KB 132, 137f; McBryde, n 36, para 21-28; Treitel, n 6, para 13-001f. 46 Treitel, n 6, para 12-017. 47 Zimmermann, n 7, 286; W Ernst, in K Rebmann (ed), Münchener Kommentar zum Bürgerlichen Gesetzbuch, 4th edn (2001-), § 275 para 3. 48 There is some discussion on the question whether the non-performance itself can constitute a breach of contract in the case of impossibility or whether the breach can only be seen in the culpable behaviour. The prevailing view is the former approach; cf Münchener Kommentar/Ernst, n 47, § 280 para 11f. 49 Yet, subjective impossibility seems to differ from the former § 275 (2) as it demands to overcome some impediments; Münchener Kommentar/Ernst, n 47, § 275 para 3. This, however, corresponds with Art 8:108. 50 Cf Zimmermann, n 7, 280f. 51 Cf Zimmermann, n 7, 282. 52 § 275 (2) BGB; cf Zimmermann, n 7, 281ff, and in German the extensive treatment by Münchener￾Kommentar/Ernst, n 47, § 275 paras 69ff. Some remarks on § 275 (2) BGB are made below, last para of C.IV