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In the absence of extraordinary situations, the courts will rely on the contract’s terms, not the Impossibility of Performance Doctrine. Is there a doctrine in the house? (Part 4)
M y wife and I visited St. Peter’s Basilica in Rome a few years ago. A friend recommended that we try to see St. Peter’s tomb, which is located beneath the grand cathedral and requires a special ticket for admission. When I inquired about tickets, however, the Vatican sales clerk told me that these tickets are sold weeks in advance and it was “impossible” to merely walk up to the window and buy one. I thought for a moment about where I was and said, “With God, nothing is impossible.” He smiled and said, “With God, yes! But with you, it is impossible!” This harkens back to another legal doctrine, commonly known as the Impossibility of Performance Doctrine.
William Quatman GENERAL COUNSEL
In the Supreme Court’s 1918 ruling in U.S. v. Spearin, it was stated that, “Where one agrees to do, for a fixed sum, a thing possible to be performed, he will not be excused or become entitled to additional compensation, because unforeseen difficulties are encountered.” But what if the “thing” to be done is not physically possible to perform? The courts have created the Impossibility of Performance Doctrine to cover such situations, which excuses a party to a contract from performance “when an act of God, the law, or the other party renders performance
impossible.” The doctrine also covers physical constraints that make the work impossible. This doctrine is not based on whether a particular contractor cannot perform the work, but whether “any” contractor could perform it. Courts have held that, “performance is rendered impossible only when it is objectively determined that no contractor could perform the work.” Impossibility of performance is not subjective and is recognized only in the nature of the thing to be done, and not in the inability of the party to do it.
See WILLIAM QUATMAN, page 10
THE ZWEIG LETTER October 22, 2018, ISSUE 1269
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