- (1) post-contract occurrence;
- (2) not reasonably foreseeable at the time of K and was not a risk assumed by a party to the K;
- (3) renders performance impossible (commercially impracticalbe); AND
- (4) not the fault of the party seeking to be excused.
RECOVERY: Where work partially performed before event of impossibility, party who performed can seek compensation for his work in quasi-contract
(K rate or reasonable value).
- NOTE: In cases of impossibilty, need NOT pay for substitute employee (if needed).
- NOTE: Where physical illness causes impossibility, it does not matter if illness is D's fault. Can still be excusable.
- Destruction of Suject Matter of K or Means of Performance
- >> CL: Excused.
- >>>> NOTE: Builder's duty to construct building gen NOT discharged by destruction of work in progress.
- >> UCC: Usually excused.
- >>>> Consider: Did buyer have RoL at time of destruction, AND how is destruction of some goods handled?
- >>>>>> Non-merchant sellers: risk of loss on buyer shifts on TENDER (making goods reasonably available).
- >>>>>> Merchant sellers: risk of loss shifts of RECEIPT.
S not liable for breach, but B not required to take partial delivery.