Defining the Obligation to Perform

AuthorJ.H. Verkerke
IV. Defining the Obligation
to Perform
We have thus far focused on the rules that determine whether the
parties have made an enforceable contract. Our attention now shifts to the
question of performance. What conduct will be sufficient to fulfill each
party’s obligation under the contract? Are there circumstances that might
excuse performance?
1. Excuse
When we make or receive promises, we understand that there are at
least some circumstances that will extinguish the resulting obligation to
perform. In social settings, a “good excuse” exists whenever an unexpected
contingency prevents someone from fulfilling her promise. If Sharon has
agreed to give several friends a ride to a concert, mechanical trouble with her
car excuses her from a duty to drive, but not from a duty to tell her friends
promptly about her inability to drive. If, however, Sharon is seriously injured
in a car accident on the way to pick up her friends, no one would condemn
her for failing to call.
What is it about our understanding of Sharon’s promise that allows
us to make these nuanced judgments about responsibility? Notice first that
the words of the promise itself play no role in establishing that mechanical
trouble would excuse performance or in distinguishing between the
consequences of mechanical trouble and personal injury. Sharon made an
unqualified promise to drive her friends to the concert, and no one expects
her to recite a litany of circumstances in which she will be unable to perform.
Instead, we rely on a shared understanding about what events justify
Commercial agreements ordinarily involve comparatively complex
obligations. Their express terms likewise cover a wider array of
contingencies. However, no contract can possibly provide for every event
that might occur between the execution of the contract and the time for
performance. In the two cases that follow, consider carefully the role of
contractual language in allocating the risks of unexpected contingencies. Try
to develop a theory that can explain and perhaps justify the results in these
1.1. Principal Case
Stees v. Leonard
Stees v. Leonard
Supreme Court of Minnesota
20 Minn. 494 (1874)
[1] Appeal by defendants from an order of the district court,
Ramsey county, denying a new trial.
[2] The action was brought to recover damages for a failure
of defendants to erect and complete a building on a lot of plaintiffs, on
Minnesota street, between Third and Fourth streets, in the city of St.
Paul, which, by an agreement under seal between them and plaintiffs, the
defendants had agreed to build, erect, and complete, according to plans
and specifications annexed to and made part of the agreement. The
defendants commenced the construction of the building, and had carried
it to the height of three stories, when it fell to the ground. The next year,
1869, they began again and carried it to the same height as before, when
it again fell to the ground, whereupon defendants refused to perform the
contract. They claimed that in their attempts to erect the building they
did the work in all respects according to the plans and specifications, and
that the failure to complete the building and its fall on the two occasions
was due to the fact that the soil upon which it was to be constructed was
composed of quicksand, and when water flowed into it, was incapable of
sustaining the building. The offers of proof by defendants, and the
character of the allegations in the answer, under which the court held
some of the offers inadmissible, are sufficiently indicated in the opinion.
[3] The general principle of law which underlies this case is
well established. If a man bind himself, by a positive, express contract, to
do an act in itself possible, he must perform his engagement, unless
prevented by the act of God, the law, or the other party to the contract.
No hardship, no unforeseen hindrance, no difficulty short of absolute
impossibility, will excuse him from doing what he has expressly agreed to
do. This doctrine may sometimes seem to bear heavily upon contractors;
but, in such cases, the hardship is attributable, not to the law, but to the
contractor himself, who has improvidently assumed an absolute, when he
might have undertaken only a qualified, liability. The law does no more
than enforce the contract as the parties themselves have made it. Many
cases illustrating the application of the doctrine to every variety of
contract are collected in the note to Cutter v. Powell, 2 Smith, Lead. Cas. 1.
[4] The rule has been applied in several recent cases, closely
analogous to the present in their leading facts. In Adams v. Nichols, 19
Pick. 275, the defendant, Nichols, contracted to erect a dwelling-house
for plaintiff on plaintiff's land. The house was nearly completed, when it
was destroyed by accidental fire. It was held that the casualty did not
relieve the contractor from his obligation to perform the contract he had
deliberately entered into. The court clearly state and illustrate the rule, as
laid down in the note to Walton v. Waterhouse, 2 Wms. Saunders, 422, and
add: “In these and similar cases, which seem hard and oppressive, the law
does no more than enforce the exact contract entered into. If there be
any hardship, it arises from the indiscretion or want of foresight of the
suffering party. It is not the province of the law to relieve persons from
the improvidence of their own acts.”
[5] In School District v. Dauchy, 25 Conn. 530, the defendant
contracted to build and complete a school-house. When nearly finished,
the building was struck by lightning, and consumed by the consequent
fire, and the defendant refused to rebuild, although plaintiffs offered to
allow him such further time as should be necessary. It was held that this
non-performance was not excused by the destruction of the building.
The court thus state the rule: “If a person promise absolutely, without
exception or qualification, that a certain thing shall be done by a given
time, or that a certain event shall take place, and the thing to be done, or
the event, is neither impossible nor unlawful at the time of the promise,
he is bound by his promise, unless the performance, before that time,
becomes unlawful.”
[6] School Trustees v. Bennett, 3 Dutcher, 513, is almost
identical, in its material facts, with the present case. The contractors
agreed to build and complete a school-house, and find all materials
therefor, according to specifications annexed to the contract; the building
to be located on a lot owned by plaintiff, and designated in the contract.
When the building was nearly completed it was blown down by a sudden

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