Impossibility Of Performance Essay

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In this case analysis we will discuss the elements of impossibility of performance and the three situations where this defense can be used.   Additionally, we will discuss commercial impracticability and its application to the following scenario.
In this scenario, 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.   The question is can Millie defend successfully on the basis of outcome of performance?
There are times after a contract has been made that performance may become impossible in an objective sense, this is known as the doctrine of impossibility of performance. (Miller & Jentz, 2008)   There are three situations under objective impossibility of performance that may be used as defenses to a breach of contract: 1) “When a party whose personal performance is essential to the completion of the contract dies or becomes incapacitated prior to performance.” (Miller & Jentz, 2008, pp. 235), an example would be if I hired a local photographer to video my daughter’s wedding, and prior to the wedding day he is involved in a car accident and dies; 2) “When the specific subject matter of the contract is destroyed.”(Miller & Jentz, 2008, pp. 235), an example would be I have hired a contractor to paint my home, but prior to starting the job my house catches fire and burns to the ground; and 3) “When a change in the law renders performance illegal.” (Miller & Jentz, 2008, pp. 235), an example would be that I have hired a contractor to build a home for me during the first month of   the annual hurricane season, but prior to the start of construction, a hurricane come through and the city passes a new law prohibited any new construction for the remainder of the hurricane season.   There is also temporary impossibility, “an...

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