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Impossibility of Performance

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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? Explain.
In responding 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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Solution Preview

Millie's situation is "force majeure" and qualifies for "impossibility of performance".

This is an exculpatory clause that excuses performance upon the occurrence of an event beyond a party's control.
A typical such clause from Smith (2011) might read: "The Company shall not be liable for any failure in the performance of its obligations under this agreement which may result from strikes or acts of labor unions, fires, floods, earthquakes, or acts of God, war or other contingencies beyond its control."

Millie has no control over the occurrence of drought which devastated his crops.
Smith (2011) suggested that three situations must be present before impossibility of performance would apply : (1) a contingency has occurred; (2) the contingency has made performance impracticable; and (3) the nonoccurrence of that contingency was a basic assumption upon which the contract was made.

Commercial ...

Solution Summary

This solution discusses the doctrine of impossibility of performance. It shows that three situations must occur before impossibility of performance would apply. These situations are (1) a contingency has occurred; (2) the contingency has made performance impracticable; and (3) the nonoccurrence of that contingency was a basic assumption upon which the contract was made.

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