Also known as: death or incapacity of a person · death/incapacity of party · death of party · incapacity of party · termination by death
Written by attorneys · grounded in primary & secondary sources — see below
A supervening event that discharges a contractual duty when performance depends on the continued life or legal capacity of a particular person whose services or existence formed a basic assumption of the bargain. The event excuses the duty without fault by the promisor unless the parties agreed otherwise.
Dominic Drake retained Derek Douglas's firm to handle a defamation suit in State X. Derek was the only partner admitted in State X and was named in the engagement letter. Derek died unexpectedly before trial. No other lawyer at the firm held a State X license, so the firm withdrew. Dominic sued for breach. The court held the firm's duty discharged because Derek's continued availability was a basic assumption of the contract.
Dwight Dorsey emailed Dolores Diaz an offer to hire her as a researcher for three months. Dolores emailed an unequivocal acceptance within the hour. Dwight died before reading the email. The administrator of Dwight's estate later found the message. Dolores sued the estate for breach. The court ruled no contract formed because Dwight's death terminated Dolores's power of acceptance before acceptance could occur.
Select any source to read its text and confirm it supports the definition.
No. Discharge occurs only when the nonoccurrence of that death was a basic assumption of the contract and the promisor was not at fault. The parties may agree to assume the risk of death regardless of supervening events.
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The offeree's power of acceptance terminates automatically upon the offeror's death. An attempted acceptance after death cannot form a contract even if the offeree was unaware of the death and the offer stated a longer acceptance period.
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No. Actual authority terminates automatically at the principal's death without any requirement of notice to the agent. The agent cannot bind the estate or successor after that point under traditional common law.
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No. When the contract centered on one specific lawyer whose admission or personal services were essential, the firm is not required to secure replacement counsel unless the agreement expressly allocated that risk to the firm.
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…could be declared invalid only by a court, the child is born during the attempted marriage, or within 300 days after its termination by death, annulment, declaration of invalidity, or divorce. [¶] (ii) If the attempted marriage is invalid without a court order, the child is born within 300 days after the termination of…