Defenses to Performance

Question 1

A fact or circumstance that excuses performance because (1) the obligation cannot be performed because of its nature, (2) the subject or means of performance has deteriorated, has been destroyed, or is no longer available, (3) the method of delivery or payment has failed, (4) a law no prevents performance, or (5) death or illness prevents performance.

Answer 1

Impossibility of Performance

Question 2

The occurrence of a contingency whose nonoccurrence was an assumption in the contract, as a result of which one party cannot perform.

Answer 2

Economic or Commercial Impracticability

Question 3

A prospective failure of condition occurs when an anticipatory breach is present and will excuse the non-breaching party from his or her performance.

Answer 3

Prospective Failure of Condition

Question 4

Although performance is still possible, a party to a contract will be discharged from an obligation to perform when an unanticipated event occurs after the formation of the contract, with a result that the parties’ main purpose in making the contract has become so frustrated that the benefit to be received by one party from the other party is now totally destroyed or materially impaired.

Answer 4

Frustration of Purpose