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Impossibility in the thing to be done, not just the ability of the promisor to do it.
- performance becomes illegal
- specific subject matter of the contract is destroyed
- party performing personal services dies or becomes incapacitated
Available where contract was formed on a basic assumption that an unforeseeable event would not occur, the event occurs and makes performance impracticable, and the party seeking discharge is not at fault.
Not available for a bad deal. Requires totally unexpected occurrence.
- Goods identified at time of contract are destroyed
- Performance becomes illegal
- Performance has been made impracticable (unexpected contingency occurred making performance impracticable)
- Goods actually produced are apportioned among all buyers.
The UCC allows for a defense of commercial impracticability
Frustration of purpose
Unex[ected events arise that destroy one party's purpose in entering into the contract. Must not be the fault of the frustrated party, and its non-occurrance must have been a basic assumption of the contract.
Occurrence need not be completely unforeseeable, but must have been unexpected and not realistic.
Non-defaulting party may rescind, or parties may recind by mutual agreement by surrendering their rights under the original contract.
Mutual rescision NOT allowed where a third-party beneficiary's rights have already vested.
WRITING that manifests intent to discharge another party from existing duty.
- Common law: must be supported by consideration
- UCC: no consideration needed