Cite as: 518 U. S. 839 (1996)
Opinion of Souter, J.
An even more serious objection is that allowing the Government to avoid contractual liability merely by passing any "regulatory statute" would flout the general principle that, "[w]hen the United States enters into contract relations, its rights and duties therein are governed generally by the law applicable to contracts between private individuals." Lynch v. United States, 292 U. S., at 579.39 Careful attention to the cases shows that the sovereign acts doctrine was meant to serve this principle, not undermine it. In Horowitz, for example, if the defendant had been a private shipper, it would have been entitled to assert the common-law defense of impossibility of performance against Horowitz's claim for breach. Although that defense is traditionally unavailable where the barrier to performance arises from the act of the party seeking discharge, see Restatement (Second) of Contracts § 261; 2 E. Farnsworth, Contracts § 9.6, p. 551 (1990); cf. W. R. Grace & Co. v. Rubber Workers, 461 U. S. 757, 767-768, n. 10 (1983), Horowitz held that the "public and general" acts of the sovereign are not
virtually identical argument in Perry v. United States, 294 U. S. 330 (1935), in which Congress had passed a resolution regulating the payment of obligations in gold. We held that the law could not be applied to the Government's own obligations, noting that "the right to make binding obligations is a competence attaching to sovereignty." Id., at 353.
39 See also Clearfield Trust Co. v. United States, 318 U. S. 363, 369 (1943) (" 'The United States does business on business terms' ") (quoting United States v. National Exchange Bank of Baltimore, 270 U. S. 527, 534 (1926)); Perry v. United States, supra, at 352 (1935) ("When the United States, with constitutional authority, makes contracts, it has rights and incurs responsibilities similar to those of individuals who are parties to such instruments. There is no difference except that the United States cannot be sued without its consent" (citation omitted)); United States v. Bostwick, 94 U. S. 53, 66 (1877) ("The United States, when they contract with their citizens, are controlled by the same laws that govern the citizen in that behalf"); Cooke v. United States, 91 U. S. 389, 398 (1875) (explaining that when the United States "comes down from its position of sovereignty, and enters the domain of commerce, it submits itself to the same laws that govern individuals there").
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