Also known as: supervening death · supervening destruction · supervening illegality · supervening impossibility · frustration · impossibility of performance
Written by attorneys · grounded in primary & secondary sources — see below
A contract doctrine that discharges a party's duty to perform when an unforeseen supervening event renders performance impracticable without the party's fault. The doctrine traditionally covers the death or incapacity of a person necessary for performance, the destruction of a specific thing necessary for performance, and a supervening legal prohibition or prevention.
Summit Bank contracted with Skyline Construction to renovate a historic building for a new branch. Before work began, a lightning strike destroyed the building. The destruction made the specific performance impossible. Skyline's duty to renovate is discharged.
Sentinel Security agreed to install surveillance systems at Starlight Media's studios. A city ordinance temporarily prohibited all construction work for six months due to infrastructure repairs. After the ban lifted, Sentinel could resume without material extra burden. The duty to perform is suspended during the ban but not discharged.
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Sasha Stone promised to deliver custom equipment to Solomon Silver by a set date. Sasha repudiated the contract. Later, a statute banned the equipment's manufacture. The duty Sasha repudiated would have been discharged by the statute. Sasha's liability for damages from repudiation is discharged.
Seth Shapiro hired Simone Sanders to perform a solo piano recital at his private venue. Simone died unexpectedly two weeks before the date. No substitute performer could fulfill the personal obligation. Simone's estate has no duty to perform.
Sarah Sullivan borrowed from Summit Bank under a mortgage requiring monthly payments. A state law later suspended all mortgage foreclosures and payment obligations for two years due to economic emergency. The law made timely payment legally impossible. Sarah's duty to pay during the period is discharged.
Eastern Air Lines contracted with Gulf Oil for jet fuel at a fixed price. A sudden embargo made the specific fuel source unavailable. No reasonable substitute existed at the contract price. Gulf Oil's duty to supply the fuel is discharged.
Temporary impracticability suspends the duty while the event lasts. The duty is not discharged unless resuming performance after the event would be materially more burdensome than originally contemplated.
The repudiating party's duty to pay damages for total breach is discharged if the repudiated duty would have been excused by impracticability or frustration before any actual nonperformance.
The general principle of discharge for supervening impracticability applies broadly to all types of contracts. The three categories of death, destruction, and legal prohibition are traditional illustrations but do not limit the doctrine.
…parts responsible, although the circumstances clearly pointed to such fact as the cause of the mishap. Can it be said that the impossibility of performance deprived the buyer of the benefit of the warranty? Moreover, the guaranty is against defective workmanship. That condition may arise from good parts improperly assembled. There being no…