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IMPOSSIBILITY, IMPRACTICABILITY, AND FRUSTRATION

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ABSTRACT
Three fundamental concepts underlie the principles that should govern unexpectedcircumstances
cases. (1) A contract consists not only of the writing in which it is partly
embodied, but also includes, among other things, certain kinds of tacit assumptions.
(2) These assumptions may be either event-centered or magnitude-centered. (3) The
problems presented by unexpected-circumstances cases should be viewed in significant
part through a remedial lens. The principles that rest on these concepts can be
broadly summarized as follows. A shared nonevaluative tacit assumption that a given
circumstance will persist, occur, or not occur during the contract time should provide
a basis for judicial relief where the assumption would have affected the promisor’s
obligations had it been made explicit. If the promisor was neither at fault for the occurrence
of the unexpected circumstance, nor in control of the conditions that led to the
occurrence, she should not be liable for expectation damages. The promisor should,
however, be liable for restitutionary damages, because it would be unjust to allow
the promisor to both be excused from performance and retain any benefits that she
received under the contract. Alternatively, the promisor should be liable for reliance
damages where she is at fault for the creation of the unexpected circumstance, but
the fault is minor; where the promisor is in control of the conditions that led to the occurrence
of the unexpected circumstances; or where an objective of the contract was
to reserve for the promisor the promisee’s time, labor, or productive capacity. A seller
should also be entitled to judicial relief if as a result of a dramatic and unexpected rise
in her costs, performance would result in a financial loss that is significantly greater
than the risk of loss that the parties would reasonably have expected that the seller
had undertaken. If, under such circumstances, the market value of the contracted-for
commodity has risen in tandem with the seller’s costs, the buyer should be entitled to
the profit he would have made if a reasonably foreseeable increase in the seller’s cost
of performance, and a corresponding increase in the market value of the commodity,
had occurred. In appropriate cases, courts should take into account gains and losses to
both parties that proximately resulted from, or were made possible by, the occurrence
of the unexpected circumstance.

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Informasi Detail

Judul Seri

Journal of Legal Analysis

No. Panggil

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Penerbit

Oxford : Oxford University Press on behalf of The John M. Olin Center for Law., 2009

Deskripsi Fisik

Winter 2009: Volume 1, Number 1 ~ Journal of Legal Analysis

Bahasa

English

ISBN/ISSN

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Klasifikasi

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Tipe Isi

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Tipe Media

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Tipe Pembawa

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Edisi

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Subjek

HUKUM

Info Detail Spesifik

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Pernyataan Tanggungjawab

agus

Versi lain/terkait

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