Other types of impossibility of performance scenarios include when the subject matter of a contract is no longer available or when weather conditions interfere with the performance of the contract. For example, if a home buyer signs a contract to buy a home from a seller, but an earthquake or hurricane destroys the entire house. When a contract is terminated, this usually means that the contracting parties are exempt from the performance of the legal obligations provided for in a contract. It also means that the treaty is no longer in force. For example, a party may be able to raise the objection of imperative impossibility if it was due before performance, but after the creation of the contract, laws were passed that would make it illegal to perform the contract until it was concluded. In most cases, a contract usually includes a “force majeure” clause that contains instructions on what to do if unforeseen circumstances make the performance of the contract impossible or impracticable. Depending on the jurisdiction and what the parties have agreed in the contract, issues related to COVID-19 may be covered by such a clause. On the other hand, a frustration of purpose refers to an incident that would undermine or “thwart” a party`s intentions to enter into a contract. An example of a situation where frustration with the purpose may arise when an unforeseen event destroys the sole purpose of the contract or when a person or object necessary for the performance of the contract is not available. This is raised as a defense in a breach of contract claim. For example, if the plaintiff alleges that the defendant has breached its contractual obligations, the defendant will assert that claim and indicate that it cannot perform the contract due to one of the above scenarios.
Thus, if the contract involves an owner paying a contractor to renovate his backyard and a hurricane occurs, the contractor cannot be held responsible for the non-performance because performance is impossible during the hurricane period. Factors that can lead to inability to perform may include serious injury, illness, or death. Other reasons why performance may not be possible include weather, natural disasters, and legislated changes that affect the project. The English case that established the doctrine of impossibility at common law was Taylor v. Caldwell.  Economic impossibility exists when the performance of a contract by a party has become extremely difficult or costly. The difference between impracticability and impossibility is that impractical is still physically possible; However, performance creates considerable difficulties for the performing party. Impracticability excuses performance if the excused party had no control (or was not to blame) over the condition that made the service unenforceable. In addition, the excused party must not have expressly or implicitly assumed the risk that the obligations will become unenforceable. In general, impracticability is determined only in extreme circumstances. An example of someone making performance impossible would be when John promises to pay Sue if she agrees to take care of her dog for a week.
However, if Sue causes the dog`s death before the contract is fulfilled, John Sue has nothing to pay. In fact, John is able to sue Sue for his dog`s death and recover. The average action is either an action for a declaration of liability for the negligent causation of a breach of another (tort of action) or for damages for breach of contract. As discussed in our article on contracts, in a contractual action, the plaintiff must prove the existence of an enforceable contract, the breach of contract of the defendant and the damages caused by the breach. If a party is unable to prove the elements of any of these positive defenses, or if its contract does not allow it to raise such objections, it should consider including a clause dealing specifically with contractual matters arising from COVID-19. In the main California case that approved this expanded importance, Mineral Park Land Co.c. Howard, 172 Cal. 289 [156 p. 458, R.S.A. 1916 F 1], the Court accepted the objection of impracticability in an action relating to a contract for the removal of all gravel necessary for the construction of an embankment and the completion of cement work on a planned bridge, where the evidence showed that the defendant used all available gravel, with the exception of submerged gravel, whose extraction cost would have been ten or twelve times higher than the cost of removing the surface gravel. If the main subject matter of a contract is destroyed, further performance may be excused, unless otherwise contractually provided.
For example, a roofer who purchases equipment for use in a building destroyed by fire may terminate this equipment contract. Although the purchase of roofing materials is not made impossible by the fire, the purpose for which the materials were contracted cannot be achieved by anyone through no fault of their own. This is a more difficult argument because the material supplier may argue that they are not responsible for the frustration, but that they have to suffer more than the roofer. Here, too, the court is likely to compensate for the actions. Terminating a contract is often difficult to achieve without expecting consequences. Unless you can definitively prove that it is not primarily your fault or that the circumstances that led to the termination of the contract were beyond your control, you will most likely have to pay financial damages to another interested party. This is especially true for lawsuits arising from COVID-19 related issues. All three things must be present for the court to consider that an impossibility of execution is impossible; However, while one party may think this is difficult to prove, such arguments are common in contractual disputes.
Most courts hold that such disputes carry weight and therefore invalidate the contract due to the impossibility of performing the contract. Like an event that would result in the impossibility of performing a contract, the impracticability of the service also includes an unforeseen event that occurs after the conclusion of a contract, but before the full performance of a contract. The defendant then has the burden of proof for the necessary elements of the affirmative defence which he puts forward and which correspond to the facts of his case. However, if a defendant does not indicate in his first reply the impossibility or impossibility of performance or cannot prove the necessary elements, the defendant may not raise either of the two affirmative objections to the plaintiff`s request. There is a breach of contract if one of the contracting parties violates the terms of the contract. A violation can be “material”, which is a serious breach, or “non-material”, which is less serious. As a general rule, the party who has not breached the contract is released from his contractual obligations. If, after the signing of a written contract and in some cases the acceptance of an oral contract, the terms of the contract are difficult to comply with, the defense against the impossibility of performance may be applicable to your situation. Performance is impossible if the contractual obligations and obligations of one or more parties cannot be fulfilled under normal circumstances. There are two types of impossibility of performance: the difference between the frustration of the purpose and the impossibility or impossibility of the service is that the latter refers to the obligations set out in the terms of the contract, while the first focuses on the reasons why the parties concluded the contract in the first place. It is important for the parties to understand that unless in a business environment, increasing difficulties or expenses is generally not an excuse to circumvent obligations arising from the contract. .