Smythe, Donald J. --- "Impossibility and Impracticability" [2011] ELECD 128; in De Geest, Gerrit (ed), "Contract Law and Economics" (Edward Elgar Publishing, 2011)

Book Title: Contract Law and Economics

Editor(s): De Geest, Gerrit

Publisher: Edward Elgar Publishing

ISBN (hard cover): 9781847206008

Section: Chapter 11

Section Title: Impossibility and Impracticability

Author(s): Smythe, Donald J.

Number of pages: 18

Extract:

11 Impossibility and impracticability
Donald J. Smythe


1. Introduction
Once parties have made a contract, should they ever be excused from the
performance of their obligations? This is the question addressed by the
doctrines of impossibility and impracticability. These provide affirma-
tive defenses to complaints seeking specific performance or damages for
alleged breaches of contract. They may be interpreted as default rules that
provide an implied term in every contract excusing the parties from their
obligations in the event that some contingency causes their performances
to become impossible or impracticable. As such, they are often referred
to as excuse doctrines. This chapter will survey the law and economics
literature on the role of excuse doctrines in contract law.
The doctrine of impossibility is usually only applied in circumstances
in which a party's performance has become physically impossible, such
as when a painter dies before fulfilling a contractual promise to complete
a painting. The doctrine of impracticability, on the other hand, may be
applied in circumstances in which a party's performance is physically
possible but will cause severe hardship, such as when the costs of build-
ing a bridge rise so much that the party that contracted to build it will be
forced into bankruptcy if compelled to perform. These two doctrines are
closely related to the doctrine of frustration of purpose, which may apply
in circumstances in which the essential purpose of a contract has been frus-
trated, such as when a party rents rooms specifically to view ...