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c. Crop Failure Crop failure is often invoked to apply § 2-615. Courts tend to treat crop failure similarly to general failure of a seller’s supply source. That is, ideally, for crop failure to excuse the seller’s performance, (1) the contract should designate some specific plot of land, crop, or other source as the sole source of the crops, (2) that source must fail, (3) the reason for the failure must be unforeseeable, and (4) the seller should take all due steps to prevent the failure. However, in one case, peanut crops failed on a massive scale due to an unforeseen, unforeseeable, and indeed unprecedented drought. There, the court excused the farmer’s performance even though no particular land or crop was necessarily designated as the one source for the peanuts. Thus, on similar facts, courts may be inclined to excuse the seller’s performance even without a designated source. [ See U.C.C. § 2-615, cmt. 9 (1951); 2 Hawkland UCC Series § 2-615:2, Westlaw (database updated June 2021); Alimenta (U.S.A.), Inc. v. Gibbs Nathaniel (Canada) Ltd. , 802 F.2d 1362 (11th Cir. 1986).] Note : Oftentimes, cases involving crop failures could be analyzed under either § 2-613 (casualty to identified goods, discussed above) or § 2-615. [U.C.C. § 2-615, cmt. 9 (1951); 2 Hawkland UCC Series § 2-615:2, Westlaw (database updated June 2021); Casualty to Identified Goods, supra .] Example : A farmer contracted to deliver 25,000 tons of grain to a grain elevator. The contract did not require that the farmer grow the grain himself, nor that the grain come from a specific field or other location. The farmer failed to deliver the required tonnage due to an unusually hot, dry summer that caused his own crops to come up short. Here, § 2-615 does not apply. The contract did not require that the farmer deliver any specific grain from any specific plot of land, crop, or similar source. The farmer merely had to deliver grain; he was apparently free to acquire any suitable grain from any source ( e.g. , buying it from another farmer). The facts indicated that the farmer could, practically speaking, have obtained grain from another source, albeit it at a substantially higher cost. [ Adapted from Clark v. Wallace County Co-op Equity Exchange , 986 P.2d 391 (Kan. App. Ct. 1999) (discussing Colley v. Bi-State, Inc. , 586 P.2d 908 (Wa. App. Ct. 1978).] 2. Significance of Seller’s Assuming a Greater Obligation The excuse/defense of § 2-615 applies except to the extent that the seller has ”assumed a greater obligation.” [U.C.C. § 2-615 (1951).] Thus, if a seller contractually assumes the risk of a contingency, then that contingency cannot be a basis to invoke § 2-615. Of course, the contract may expressly state that the seller assumes the risk of certain things. Additionally, the contract’s express terms may imply assumption of various risks. For instance, as
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