DISCHARGE OF CONDITIONS W/O PERFORMANCE

Question 1

DISCHARGE: IF CONDITIONS ARE EXCUSED OR SATISFIED, THE PARTIES HAVE AN ABSOLUTE DUTY TO PERFORM, UNLSS THAT DUTY TO PERFORM IS DISCHARGED. IF SOME SUPERVENING EVENT OR CHANGE IN CIRCUMSTANCES ARISES AFTER THE FORMATION OF THE CONTRACT, THE DUTY TO PERFORM MIGHT BE DISCHARGED.

DEFENSE OF IMPRACTICABILITY: A PARTY’S DUTY TO PERFORM CAN BE DISMISSED BY IMPRACTICABILITY. THE DEFENSE OF IMPRACTICABILITYU IS AVAILABLE IF:

Answer 1

1. PERFORMANCE BECOMES ILLEGAL AFTER THE CONTRACT IS MADE;
2. THE SPECIFIC SUBJECT MATTER OF THE CONTRACT (e.g. THE GOODS) IS DESTROYED;
3. IN A PERSONAL SERVICES CONTACT, THE PERFORMING PARTY TO THE CONTRACT DIES OR BECOMES INCAPACITATED ; OR
4. PERFORMANCE BECOMES IMPOSSIBLE.

UNFORESEEN NATURAL DISASTERS, WARS, TRADE AND MILITARY ENBARGOES, STRKES AND LOCAL CROP FAILURES HAVE ALL BEEN FOUND SUFFICIENT TO EXCUSE PERFORMANCE. HOWEVER, NON-EXTRAORDIANRY INCREASES IN THE COST OF PERFORMANCE ARE NOT SUFFICIENT.

Question 2

MODERN VIEW OF THE DEFENSE OF IMPRACTICABILITY ADOPTED BY THE RESTATEMENT: WHAT ARE THE ELEMENTS OF IMPRACTICABILITY?

Answer 2

FOR THE DEFENSE OF IMPRACTICABILITY TP BE AVAILABLE, THE FOLLOWING CONDITIONS MUST ALSO BE MET:

1. AN UNFORESEEABLE EVENT HAS OCCURRED;
2. NONOCCURRENCE OF THE EVENT WAS A BASIC ASSUMPTION ON WHICH THE CONTRACT WAS MADE; AMND
3. THE PARTY SEEKING DISCHARGE IS NOT AT FAULT.

WHEN PERFORMANCE BECOMES IMPRACTICABLE FOR A SELLER OF GOODS, THE SELLER MUST NOTIFY THE BUY.ER