Jennifer Camero, ‘Mission Impracticable: The Impossibility of Commercial Impracticability’

The recent global financial crisis, accurately named the Great Recession, negatively affected almost every individual and company in the United States. Unprecedented debt levels, substantial unemployment, decreased spending, and lending freezes left many companies unable to perform their contractual obligations. To avoid damages for breach of contract, some of those companies unsuccessfully sought judicial excuse under the doctrine of commercial impracticability.

An off-shoot of impossibility, commercial impracticability permits a court to excuse an obligor when her obligation under a contract becomes commercially impracticable. Contrary to the intent of the drafters of both UCC Article 2 and the Restatements (Second) of Contracts, judges narrowly construe and apply commercial impracticability relying on unfounded and irrelevant inquiries. The result is a confusing and unpredictable doctrine.

Past articles have analyzed commercial impracticability in isolated spheres, focusing only on Article 2, a particular set of circumstances, a specific judicial decision, or a particular method of analysis. This article instead analyzes commercial impracticability in a more comprehensive manner then provides a recommendation that simplifies and clarifies commercial impracticability and unifies the application of the doctrine across contract law.

Camero, Jennifer, Mission Impracticable: The Impossibility of Commercial Impracticability (June 12, 2014).

First posted 2014-06-15 05:54:13

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