Contracts Rules 2

Impossibility in the thing to be done, not just the ability of the promisor to do it.

Valid if:

• performance becomes illegal
• specific subject matter of the contract is destroyed
• party performing personal services dies or becomes incapacitated

Available where contract was formed on a basic assumption that an unforeseeable event would not occur, the event occurs and makes performance impracticable, and the party seeking discharge is not at fault.

Not available for a bad deal. Requires totally unexpected occurrence.

Total impracticability: -

• Goods identified at time of contract are destroyed
• Performance becomes illegal
• Performance has been made impracticable (unexpected contingency occurred making performance impracticable)

Partial Impracticability - Goods actually produced are apportioned among all buyers.

The UCC allows for a defense of commercial impracticability.

Unex[ected events arise that destroy one party's purpose in entering into the contract. Must not be the fault of the frustrated party, and its non-occurrance must have been a basic assumption of the contract.

Occurrence need not be completely unforeseeable, but must have been unexpected and not realistic.

Non-defaulting party may rescind, or parties may recind by mutual agreement by surrendering their rights under the original contract.

Mutual rescision NOT allowed where a third-party beneficiary's rights have already vested.

WRITING that manifests intent to discharge another party from existing duty.

• Common law: must be supported by consideration
• UCC: no consideration needed