The Doctrine of Impossibility, or as the Uniform Commercial Code knows it, Excuse by Failure of Presupposed Conditions, remains one of the unclimbed peaks of contract doctrine. All of the famous early and mid-twentieth century mountaineers, Corbin, Williston, Farnsworth and many lesser men have made attempts on this doctrine, but none have succeeded in climbing it to the very top. The doctrine inheres in Section 2-615 of the UCC, in Sections 454 - 469 of the Restatement of Contracts and in a series of Anglo-American cases stretching back for many years. In spite of attempts by all of the contract buffs to tame the doctrine and even in the face of eloquent and persuasive general statements of the doctrine, it remains impossible to predict with accuracy how the doctrine of impossibility will apply to a variety of relatively common cases. Both the cases and the Code commentary are full of weasel words such as "severe" shortage, "marked" increase, "basic" assumptions, and so on. Anyone who has concluded his first year contracts course in confusion about the doctrine of impossibility and has since had difficulty mastering Section 2-615 or has found that the cases somehow slip through his fingers when he tries to apply them to new situations, may take modest comfort in knowing that he is in good company.
The discussion that follows aims to do four things. First is a statement of the general principles of impossibility and frustration of purpose. Second is an attempt to state a theory that will give some guidance in most cases. Third is a discussion of the consequences of a finding of Impossibility and of the obligations to allocate. Fourth is a consideration of some common fact patterns and a discussion of a small handful of UCC cases that have been decided to date.
Publication Information & Recommended Citation
White, James J. "Impossibility, Impracticability, and Supervening Illegality." In Breach of Contract in a Shortage Economy, 9-32. New York: Practising Law Institute, 1974.