Excusing Nonperformance

Question 1

Impracticability (promisee only/seller)

Answer 1

Duty is discharged IF (1) after contract (2) something occurred that made purpose impracticable though (3) no fault of either party unless (4) language in K says otherwise

Question 2

Frustration of purpose (buyer/promisor only)

Answer 2

If the principle purpose of the contract cannot occur (and it is not your fault) the duty is discharged (same exception)

Question 3

Impracticability in UCC

Answer 3

Failure of Presupposed Conditions – ONLY for the SELLER buyer does not have this remedy, or any under the UCC: says Except so far as a seller may have assumed a greater obligation (AKA assumed the risk) then delay or non-delivery is not a breach if it was made impracticable by the occurrence or non-occurrence of a contingency…

Question 4

Frustration of purpose in UCC

Answer 4

Does not exist; it is silent on this issue, buyer does not have this remedy – although it is really worth noting that the absence of a statute would still mean common law applies. So can make this argument.

Question 5

Ways to get out of impracticability/frustration of purpose

Answer 5

Hell or High Water clause – Can include provisions that say acts of god or w/e do not void contract

Question 6

Force Majeure

Answer 6

Clause put into a contract that parallels UCC 2-615 (the seller remedy of impracticability) – benefit is not having to go to court/avoid litigation and tailoring (although most don’t tailer but w/e)