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

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.

Solution Preview

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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