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unless perhaps the increased cost is so extreme that it changes the essential nature of the agreement. If obtaining a substitute method of performance is practicable, then the obligor must attempt in good faith to utilize it, even if it is significantly more burdensome or unattractive than the agreed method. [ See Nora Springs Co-op Co. v. Brandau , 247 N.W.2d 744 (Iowa 1976); Impracticability of Performance, infra .] Example : A grain elevator contracted to sell a specified tonnage of grain to a food conglomerate for resale. The contract called for the grain to be shipped by railcar. The elevator repeatedly failed to ship the grain on time, citing a lack of available railcars for shipping the grain to the conglomerate. The elevator could have shipped the grain to the conglomerate by truck, though this method would have been substantially more expensive than shipping by rail. Here, the elevator is likely obligated to ship the grain by truck. Certainly, the contract called for shipment by railcar, and shipping by truck would have been much more expensive. Even so, shipment by truck would have gotten the grain to the elevator on time, and nothing indicated that the extra cost of shipping by truck was so great as to change the fundamental nature of the agreement. [ Adapted from Nora Springs Co-op Co. v. Brandau , 247 N.W.2d 744 (Iowa 1976).] 2. Failure of Agreed Method of Payment Due to Government Regulation Special rules apply if the agreed method or means of payment fails due to some government regulation, be it foreign or domestic, and both parties have material, unperformed obligations (usually, neither full delivery nor full payment has occurred). Here, the seller may stop or withhold delivery, unless the buyer provides a substantial commercial equivalent to the agreed manner or means of payment. If the buyer has already taken delivery, then payment by the manner or means specified in the regulation will discharge the buyer’s payment obligation, regardless of commercial equivalence, assuming the regulation is not ”discriminatory, oppressive[,] or predatory.” [U.C.C. § 2-614(2), cmt. 3 (1951).] Impracticability of Performance Section 2-615 sometimes totally or partially excuses the seller’s delay in delivering the goods or failure to deliver if (1) a contingency has occurred, (2) the contingency’s nonoccurrence was a basic assumption on which the parties made the contract, (3) the contingency has made the seller’s performance impracticable, and (4) the seller is not at fault for the contingency and did not cause it. Also, a seller’s nondelivery or late delivery may be totally or partially excused, on the same terms, if good-faith compliance with a governmental regulation or order (be it foreign or domestic) makes the seller’s performance impracticable—regardless whether the regulation or order ultimately proves invalid. [U.C.C. § 2-615(a) (1951); 2 Hawkland UCC Series § 2-615:2, Westlaw (database updated June 2021).]
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