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Law: When can 'impossibility of performance' be used as a defense?

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I need help in answering the following:

Millie contracted to sell Frank 10,000 bushels of corn to be grown on Millie's farm. Due to a drought during the growing season, Millie's yield was much less than anticipated, and she could deliver only 250 bushels to Frank. Frank accepted the lesser amount but sued Millie for breach of contract. Can Millie defend successfully on the basis of outcome impossibility of performance?

In responding to the question be sure to:

- Discuss the elements of impossibility of performance and the three situations where this defense can be used.
- Discuss commercial impracticability and its application to the above case.

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1. Discuss the elements of impossibility of performance and the three situations where this defense can be used.

Impossibility of performance can terminate a contract if an unforeseen contingency prevents the performance of the contract. For instance, there is a contract with a famous singer to perform on a particular date. However, before the date the famous singer dies. This makes it impossible to perform.

Under UCC 2-615 there are three conditions that must be fulfilled before performance is excused. First, the occurrence of a contingency; Second, the contingency has made the performance impracticable and third, the non-occurrence of that contingency was a basic assumption on which the contract was made.

Millie can defend ...

Solution Summary

This solution discusses 'impossibility of performance', defines commercial impracticability, identifies principles of the impossibility of performance and provides examples where these principals have been applied. Applicable law is discusses and condition that must be fulfilled before performance is excused are identified. This solution is 400 words.

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20 Legal Multiple Choice Questions

1. Which of the following statements regarding trial courts is false?
A) Cases involving significant dollar amounts usually begin at the trial court level.
B) Trial courts keep detailed records of their proceedings.
C) Determination of the applicable law is the trial judge's responsibility
D) The trial court's fact-finding function is always handled by the jury

2. A contract for the sale of goods between Seller and Buyer contains an agreement to submit disputes arising from the contract to a neutral, nonjudicial third party. Such an agreement calls for what kind of ADR?
A) Settlement
B) Mediation
C) Arbitration
D) Minitrial

3. Which of the following government actions would most likely be subject to strict scrutiny if challenged?
A) a federal regulation of trade
B) a statute prohibiting false and deceptive advertising
C) a statute prohibiting indecent exposure
D) a government action that favors one racial group over another

4. Which of the following is not an example of actual or compensatory damages a plaintiff may win in a tort suit?
A) Damages for physical injuries
B) Damages for lost pay and benefits
C) Damages for emotional distress
D) None of the above

5. Which of the following statements about punitive damages is false?
A) Punitive damages are intended to compensate tort victims for their losses
B) Punitive damages are designed to punish flagrant wrongdoings
C) Punitive damages are, in theory, reserved for the worst kinds of wrongdoings
D) Punitive damages are designed to deter others engaged in similar wrongdoing

6. In order to win a negligence suit, a plaintiff must prove:
A) breach of duty
B) actual injury
C) causation
D) all of the above

7. Alan is an invitee on Paul's land. Therefore, Paul owes Alan a duty:
A) to exercise reasonable care to protect him against dangerous on premises conditions that Paul knows about, or reasonably
should know about.
B) only to warn him of dangerous on-premises conditions that he is not likely to discover.
C) only not to willfully and wantonly injure him on the property
D) None of the above

8. Which of the following is not a defense to a negligence claim?
A) contributory negligence
B) comparative negligence
C) last clear chance
D) assumption of risk

9. Under which of the following situations does strict liability apply?
A) keeping naturally dangerous wild animals
B) manufacture or sale of defective and unreasonably dangerous products
C) both A and B
D) Neither A and B

10. Which of the following are requirements for copyright protection?
A) the works must be fixed
B) the works must be original
C) the works must be creative
D) all of the above

11. Which of the following regarding the UCC is true?
A) The UCC imposes a duty of good faith in the performance and enforcement of contracts.
B) The UCC distinguishes between merchants and non-merchants, holding merchants to a higher standard
C) both A and B
D) Neither A and B

12. Which of the following are considered to lack capacity to contract?
A) minors
B) persons suffering from mental illness
C) intoxicated persons
D) all of the above

13. Which of the following types of contracts must be evidenced by writing under the statute of frauds?
A) contracts for the sale of land or real estate
B) contracts for the sale of goods
C) contracts for the sale of goods for a price of $500.00 or more
D) a and c

14. When a breach of contract is serious, it is said to be:
A) Material
B) Immaterial
C) Injunctive
D) Retributive

15. Which of the following types of contracts are not covered by the statute of frauds?
A) collateral contracts in which a person promises to perform the obligation of another person
B) contracts for the sale of an interest in real estate
C) contracts to mow one's lawn for three months
D) contracts in which marriage is the consideration

16. Which of the following are excuses for nonperformance under a contract?
A) Impossibility
B) commercial impracticability
C) frustration of venture
D) all of the above

17. If the goods delivered by the seller do not conform to the contract, the buyer may:
A) reject all the goods
B) accept any commercial units and reject the rest
C) both A and B
D) none of the above

18. Under the Code, if a seller fails to deliver the goods, the buyer may:
A) buy substitute goods
B) seek payment from the seller for the difference between the contract price and the cost to cover
C) seek incidental and/or consequential damages
D) all of the above

19. Under the Code, the buyer may accept defective goods:
A) and still pursue damages against the seller
B) but must waive any rights to sue the seller
C) and later cancel the contract
D) all of the above

20. Under which of the following sales contract is specific performance available to the buyer?
A) the sale of an antique vase that is "one of a kind"
B) grain that is available from another seller
C) both A and B
D) none of the above

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