Such a defence is that of the impossibility of performance. A party may rely on impossibility and argue that it did not comply with its contractual obligations because it did not do so. In certain circumstances, the impossibility of the performance may excuse non-performance. A typical example would be that a painter does not fulfill his contractual obligation to paint a house burned down during the project. The key question is to define what the true impossibility is and to determine the real effect that “impossibility” should have. In cases involving the impossibility of defence, one party may argue that it was impossible for it to do so, while the other argues that it was difficult or distressing. This article deals with the essential elements of the impossibility of defence in California. Twenty years later, the U.S. Supreme Court adopted the same rule of law. In a well-named case, The Tornado[iii], the Supreme Court held that the owner of a vessel called Tornado was not obliged to deliver cargo to his vessel, as a contract had concluded, because his vessel had accidentally caught fire before the vessel began its voyage and was not put into navigation. The ship`s owner and the recipient of the ship`s cargo had expressly agreed that the tornado should provide the cargo.
It is clear that the tornado, because it was not able to navigate, could no longer deliver the goods, but the parties had not included a clause in their contract that resolved this situation (as in Taylor v. Caldwell). The Supreme Court expressly adopted to Taylor the rule that, if the two-party agreement takes into account a number of circumstances that can no longer be met, both parties are excused from the benefit. This does not mean, however, that the facts that make the delivery more difficult or more expensive than the parties expected to meet a contract obligation (other contracts, 467, at 882-884). The courts point out that the circumstances that make the delivery more difficult or less costly than the parties envisaged at the time of the agreement are not a valid ground for defending “non-feasibility” unless such facts are of paramount importance. And if the facts justify the inseevery defence, it is a fact that the judge must determine. The dominant common law lessons, which can be seen as a positive defence in violation of contractual cases, are the impossibility of performance, infeasibility and frustration. Although these teachings are similar and often mixed, the actual circumstances in which they form are different. Parties that wish to rely on these teachings must understand their nuances and recognize the difficulty of establishing themselves under these doctrines in Delaware courts. As a positive defence, they must be formulated in a first plea, usually a response to a complaint.
In addition, the burden of the “affirmative” defence rests on the party that invokes it to satisfy the elements of any defence. The prevention of impossibility and impossibility is explained below. Commercial frustration will be addressed in a future article. For example, in Oklahoma, the Oklahoma courts ruled that it was impossible or unenforceable: for an employer to comply with the terms of a settlement agreement that requires it to use the plaintiff as the operator of the security machine, where the company no longer used the machine and did not need an operator or security officer; for an owner, to restore a hotel demolished by the tornado, where the hotel could not be reasonably rebuilt or where the defendant could not obtain the necessary materials due to a state of war; and for a railway, to continue shipping grain, where the railway will relocate the operation after the construction of a dam that floods 19 miles of track, which would have cost $25 million in today`s dollar.