Gwu school of Law Professor Swaine Spring 2013



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Impossibility


  • (VERY hard to establish this defense)

    • Must show:

      • (1) Supervening legislation prohibiting the activity in the contract

        • R § 264: If the performance of a duty is made impracticable by having to comply with a domestic or foreign governmental regulation or order, that regulation or order is an event the non-occurrence of which was a basic assumption on which the contract was made

      • (2) Supervening death or disability of a person necessary for performance

        • BUT, if someone else could easily step in, then impossibility would not be a good defense

        • R § 262: If the existence of a particular person is necessary for the performance of a duty, his death or such incapacity as makes performance impracticable is an event the non-occurrence of which was a basic assumption on which the contract was made

      • (3) The destruction, deterioration or failure to come into existence of a thing necessary for performance

        • Ex: A music hall burns down

          • Therefore, a contract for performance at that music hall is impossible because the venue no longer exists

        • R § 263: If the existence of a specific thing is necessary for the performance of a duty, its failure to come into existence, destruction, or such deterioration as makes performance impracticable is an event the non-occurrence of which was a basic assumption on which the contract was made


  • Impracticability


    • Applies to a situation in which performance is NOT impossible, but it no longer makes sense to enforce performance

      • Like a qualified impossibility defense

      • The impracticability defense has to relate to a basic assumption of the contract

    • Party asserting impracticability defense needs to show:

      • An unexpected or important event

      • The event is NOT his fault

      • The risk was NOT allocated to him

      • The event makes performance substantially more expensive or difficult

    • R § 261: Where, after a contract is made, a party’s performance is made impracticable without his fault by the occurrence of an event, the non-occurrence of which was a basic assumption on which the contract was made, his duty to render that performance is discharged, unless the language or the circumstances indicate the contrary


        • Frustration of Purpose


    • Applies to a situation in which circumstances arise that destroy the value of the other person’s performance

      • Ex: Renting a room to overlook a coronation ceremony

        • Defendant was able to get out of the contract when the ceremony was cancelled because the purpose of the contract had been frustrated / had no reason to be there anymore

    • Party asserting frustration of purpose defense needs to show:

      • An unexpected or important event

      • The event is NOT his fault

      • The risk has NOT been allocated to him

      • The event has to almost completely devalue or destroy the performance

    • R § 265: Where, after a contract is made, a party’s principal purpose is substantially frustrated without his fault by the occurrence of an event the non-occurrence of which was a basic assumption on which the contract was made, his remaining duties to render a performance are discharged, unless the language or the circumstances indicate the contrary




    • Contract liability is STRICT liability

      • The obligor is therefore liable in damages for the breach of a contract, even if he or she is without fault and even if circumstances have made the contract more burdensome or less desirable than anticipated

        • A court may grant relief where extraordinary circumstances may make performance so vitally different from what was reasonably to be expected as to alter the essential nature of the performance



    (Impracticability / Frustration of Purpose)

    • FACTS

      • P and D entered into contract, making P a dealer of D’s goods in Michigan city

      • During economic downturn, D sold its farm equipment division to competitor Case

      • Case did not offer P a renewed franchise agreement, leaving P w/out a supplier

      • P sued D for breach

      • D claimed its performance was excused due to impracticability b/c of rescission & frustration of purpose cause D could make no profit from it

    • ISSUE

      • Will a party’s performance be excused where the occurrence of a foreseeable event such as a market downturn renders the contract unprofitable?

    • HELD

      • Since market changes are the normal risks of a contract to which the parties are assumed to have considered beforehand, a contract will not be canceled for impracticability or frustration or purpose because market conditions have changed

        • Basic assumption of the contract→ Robust market / mutual profitability was NOT the basic assumption-> to make a dealer relationship was

          • The basic purpose of every contract is to make a profit!

          • Neither market shifts nor financial inability of one of the parties change the basic assumption to the contract such that it may be excused

        • Risk allocated→ Contract ascribed risk to D by specifying how to terminate the contract, and IH did not take that route / instead unilaterally terminated the contract


          • Mel Frank Tool & Supply, Inc. v. Di-Chem Co.


    (NO Frust. of Purpose, Even if Less Valuable / Profitable)

    • FACTS

      • D, a chemical distributor, negotiated w/ P to lease a storage and distribution facility for 3 yrs

      • D later told by city that recently enacted ordinance prohibited D’s storage of hazardous chemicals there

      • D vacated w/out paying rent b/c structure was useless to them as chemical warehouse

      • P sued for breach

    • ISSUE

      • Did the City’s acts substantially frustrate D’s principal purpose of storing and distributing hazardous chemicals, thus completely devaluing performance?

    • HELD

      • A tenant is not relieved from the obligation to pay rent due to a subsequent governmental regulation which prohibits the tenant from legally using the premises for its originally intended purpose if:

        • There is a serviceable use still available consistent with the use provision in the lease and

          • Not ALL of D’s inventory was hazardous / can still store other chemicals it produces

          • No term in the lease that limited storage to just hazardous chemicals

        • The fact that the use of the premises is less valuable or even unprofitable does not necessarily mean the tenant’s use has been substantially frustrated

          • D did not establish that its principal purpose for leasing the facility, storing and distributing chemicals, was substantially frustrated by the city’s actions


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