However, this does not mean that the facts which make performance more difficult or more costly than the parties expected fulfil an obligation established by the contract (Rest., Contracts, § 467, pp. 882-884). It is clear to the courts that circumstances that only make performance more difficult or costly than the parties considered at the time of conclusion of the contract do not constitute valid grounds for the “impracticability” exception, unless these facts are of the utmost importance. And whether the facts justify the unworkable defense is a fact that the judge must determine. If the court agrees with the defendant, the entire contract is terminated. In addition, if performance of the contract is no longer physically possible, future performance would also be excused. An example of this would be when a homeowner hires someone to install a new roof. If the house is destroyed by fire just before the other party has started installing the new roof, the court would not be able to enforce anything or remedy either party, since the fire itself occurred through no fault of either party. As contract law developed over the course of the twentieth century – and in response to the increase in commercial activity – courts began to recognize impossibility as a valid defense against a breach of contract lawsuit. This did not normally apply if a party considered that it was unexpectedly difficult or costly to perform in accordance with the contract; Rather, it applied only if the basis or object of the contract was destroyed or no longer existed. In addition, the defence against impossibility became available only if there was an objective impossibility. An objective impossibility has occurred when the contractual obligation could not be effectively fulfilled. Objective impossibility is often mentioned by the statement “The thing cannot be done”.
For example, if a musician promised to play a concert in a particular concert hall, but the concert hall subsequently burned down, it would be impossible to perform under the contractual agreement and the musician would be exempt from performing at that particular location. A subjective impossibility exists if only one of the Contracting Parties subjectively considers that it cannot provide the required service. For example, if a musician believed that he had not practiced enough to give a successful concert, this belief would not prevent the musician from giving the concert. The statement “I can`t” often refers to the state of mind present in a case of subjective impossibility. In contract law, impossibility is an excuse for non-performance of obligations arising from a contract based on a change in circumstances (or the discovery of pre-existing circumstances), the non-performance of which was an underlying assumption of the contract that makes the performance of the contract literally impossible. It is important for the parties to understand that increasing difficulties or costs is generally not an excuse to circumvent obligations under the contract, unless it is done in a business environment. But when an agreement is truly impossible to fulfill through no fault of the party trying to circumvent the contract, the defense of impossibility is available, and the defense of impracticability is increasingly supported by California courts. IMPOSSIBILITY.
The character of what. cannot be done in accordance with the usual order of nature. 2. It is a maxim that no one is forced to realize an impossibility. No one is bound to the impossible. 1 Swift excavation. 93; 6 July No. 121, 481. 3. On the impossible conditions in contracts, see Bac. From. Conditions, M; Co.
Litt. 206; Roles. From. 420; 6 July Nos. 486, 686; Dig. 2, 14, 39; Id. 44, 7, 31; Id. 50, 17, 185; Id. 45, 1, 69. On the subject of impossible conditions in wills, see 1 Rop. Step 505; Swinb. Part 4, p.
6; 6 July 614. Empty, in general, Dane`s Ab. Index, h.t.; Key to the Laws Rome. by Fieffe Lacroix, h.t.; COM. Dig. Conditions, D 1 & 2; Wine. From. Conditions, C a, D a, E a. The freedom to sign contracts and the added ability to enjoy the benefits of the treaty or bear the cost of the breach is a valuable right of most Americans. The ability to control one`s personal and professional future by choosing the commitments to be made is at the heart of our economic and personal well-being. As one expert has already pointed out, contractual freedom is similar to the freedom to engage in the world of commerce, whether as a seller or as a consumer.
As stated in 6 Corbin on Contracts, article 1325, page 338, “A service may be so difficult and expensive that it is said to be `impracticable` and performance may be refused because of impossibility.” (See City of Vernon v. City of Los Angeles, 45 Cal. 2d 710, 719 [290 p.2d 841]; 12 Cal.Jur.2d, Contracts, § 238, pp. 461-462.) Modern American law uses the term impracticability as a synonym for the term impossibility, mainly because some things may not be absolutely impossible to do, but are still not practical. Therefore, the general rule is that something may be impossible to achieve if it were not possible to perform it. A contractual obligation is impracticable “if it can only be made at an excessive and unreasonable price” (Transatlantic Financing Corp.c. USA, 363 F.2d 312 [D.C. Cir.
1966]). All three things must be present for the court to consider an impossibility of performance; However, while one party may think this is difficult to prove, such arguments are common in contractual disputes. Most courts hold that such disputes carry weight and therefore invalidate the contract due to the impossibility of performing the contract. Historically, a person entering into a contract was required to perform his or her promised duties, whether or not it became impossible to do so. Thus, the first American courts did not recognize the defense of impossibility of execution. The courts have concluded that if the parties to a contract wanted to take into account all the events that might occur after an agreement, they should have taken those contingencies into account in the contract. The legal extension of the meaning of “impossibility” as a defence (which, according to the common law, originally meant the literal or physical impossibility of performance) to “impossibility of performance” is now generally recognized as a valid defence (6 Williston on Contracts (rev.ed.) § 1931, pp. 5407-5411). If the execution becomes so difficult or expensive that the value of the order is destroyed for a part, it may be financially impossible to continue this execution until its completion. However, despite serious economic consequences, the continuation of benefits can only be legally excused if the immediate cause of the difficulty could never have been foreseen. In the absence of exceptional circumstances, loss of money is not a legal defense against an infringement action.
Note that different criteria may be applied in agreements between traders under the UCC. When a party raises the impracticability exception, the courts generally determine three things: first, whether something unexpected occurred after the parties entered into the contract; second, if the parties had assumed that this would not happen; and thirdly, that the unforeseen event rendered the performance of the contract impracticable. Some widely recognized events that would normally constitute a defence of impracticability are the death or illness of one of the necessary parties, the unforeseeable destruction of the subject matter of the contract (perhaps by a “force majeure event”), or overriding illegality. Impossibility has been used as a defence against charges of attempted crimes. Historically, courts have recognized that a party cannot be convicted of criminal attempts if the actual crime was legally impossible to accomplish. For example, if a person has been accused of attempting to obtain stolen property but the property has not actually been stolen, the defense of legal impossibility could arise. .