Impossibility

AuthorJeffrey Lehman, Shirelle Phelps

Page 347

A legal excuse or defense to an action for the breach of a contract; less frequently, a defense to a criminal charge of an attempted crime, such as attempted ROBBERY or murder.

Historically, a person who entered a contract was bound to perform according to his or her promised duties, regardless of whether it became impossible to do so. Thus, early U.S. courts did not recognize the defense of impossibility of performance. Courts noted that if the parties to a contract had desired to take into account any events that may develop after they reached an agreement, then they should have accounted for such contingencies in the contract.

As contract law developed over the twentieth century?and in response to increasing commercial activities?courts began to recognize impossibility as a valid defense to an action for breach of a contract. This defense did not normally apply if one party found it unexpectedly difficult or expensive to perform according to the contract; rather, it applied only when the basis or subject matter of the contract was destroyed or no longer existed. In addition, the defense of impossibility became available only if objective impossibility existed. Objective impossibility occurred when the contractual obligation could not actually be performed. Objective impossibility is often referred to by the statement "The thing cannot be done." For example, if a musician promised to play a concert at a specific concert hall but the concert hall subsequently burned down, it would be impossible to perform according to the contractual agreement and the musician would be excused from performing at that particular venue. Subjective impossibility exists when only one of the parties to a contract subjectively believes that she or he cannot complete the required performance. For example, if a musician believed that he had not practiced sufficiently to perform a successful concert, this belief would not excuse the musician from performing the concert. The statement "I cannot do it" frequently refers to the state of mind present in a case involving subjective impossibility.

Modern U.S. law uses the term impracticability synonymously with the term impossibility, primarily because some things may not be absolutely impossible to perform but are nevertheless impracticable to complete. Thus, the general rule is that a thing may be impossible to perform when it would not be practicable to perform. A contractual...

To continue reading

Request your trial

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT