Contracts & ExecutionQuestion 871 of 1632

The doctrine of 'impossibility' (or impracticability) may excuse performance when:

a.One party found a better opportunity somewhere else after the contract was signed
b.The contractor underestimated the cost of labor at the time he prepared the bid
c.The work turned out to be a good deal less profitable than the contractor expected
d.An unforeseen event, through no party's fault, prevents performance entirely

Explanation

Civil Code §1511 excuses performance prevented or delayed by an irresistible superhuman cause, by the operation of law, or by the other party, and the courts add commercial impracticability — extreme and unreasonable difficulty or expense that was not foreseeable, not merely more than was budgeted. The three distractors are one error in three costumes. (b) is estimating risk, which is precisely what a fixed price allocates to the contractor. (c) is reduced profit, which the doctrine has never covered. (a) is opportunity cost, not an excuse at all but a reason for a breach the contractor still pays for. Compare frustration of purpose, where performance stays entirely possible but the shared reason for it is gone.

Law Reference: Civil Code §1511

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