Also known as: supervening impossibilities · frustration · impossibility of performance
Written by attorneys · grounded in primary & secondary sources — see below
Impossibility arising after the formation of a contract but before the time when the promisor's performance is due, and arising because of facts that the promisor had no reason to anticipate and did not contribute to the occurrence of. Temporary supervening impossibility suspends the duty to perform while the condition exists but does not discharge the duty unless performance after the condition ends would be materially more burdensome than originally contemplated.
Sasha Stone contracted with Sierra Solutions to deliver construction materials by a fixed date. A sudden regional flood made the only access road impassable for three weeks. Once the water receded, Sierra Solutions could resume deliveries on the original route without added cost or delay beyond the suspension period. The temporary impossibility suspended Sierra Solutions' duty during the flood but did not discharge the contract.
Santiago Sanchez agreed to supply custom equipment to Starlight Media by a set deadline. Sanchez repudiated the contract before any performance was due. Weeks later an unforeseen government embargo made the exact equipment unavailable from any source. Because the duty Sanchez repudiated would have been discharged by supervening impossibility, Sanchez owes no damages for the repudiation.
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Sarah Sullivan contracted with Silverline Industries to manufacture specialized parts in a leased facility. An accidental fire destroyed the facility and all equipment two weeks after the contract was signed. No substitute facility could produce the parts in time. The supervening destruction discharged Silverline Industries' duty because the fire was unforeseen and not caused by either party.
Sophia Singh agreed to import and deliver rare minerals to Sapphire Technologies under a one-year supply contract. Three months later a new federal embargo banned all imports of those minerals from the sole source country. The embargo was unforeseen at formation. The supervening legal prohibition discharged Sophia Singh's remaining delivery obligations.
Sylvia Santos contracted to sell her entire season's apple harvest to Sierra Solutions. An unprecedented drought destroyed the crop after the contract was signed but before harvest. The drought was not foreseeable and not caused by Sylvia Santos. The supervening crop failure discharged her duty to deliver the apples.
Sasha Stone hired Santiago Sanchez, a renowned soloist, to perform at a private gala. Sanchez contracted a sudden, unforeseeable illness that prevented any performance on the scheduled date and no suitable substitute existed. The supervening personal incapacity discharged Sanchez's duty to perform.
Temporary supervening impossibility suspends the obligor's duty while the condition exists. The duty is not discharged unless performance after the condition ends would be materially more burdensome than originally contemplated.
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The party must show that the impossibility arose after contract formation, before performance was due, from facts the party had no reason to anticipate and did not cause.
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Supervening impossibility excuses performance when the act itself becomes objectively impossible. Frustration of purpose excuses performance when an unforeseen event destroys the contract's principal purpose even though literal performance remains possible.
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No. A party's duty to pay damages for repudiation is discharged if it later appears that the repudiated duty would have been discharged by supervening impossibility before any breach by nonperformance.
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…in futile protest against practices which it can never be used effectively to control, may exact a high toll in human injury and frustration of efforts to prevent crime. No judicial opinion can comprehend the protean variety of the street encounter, and we can only judge the facts of the case before us. Nothing we say today is…