1. Contracts Defenses to Enforcement
Post-Formation Problems Providing a Defense
1. Act of God: an act of nature, typically unexpected (risk issue) including things like tornadoes, some accidents at sea, war or hostilities and the shipping problems that they may cause, etc.
2. Impossibility: something no longer can be done, e.g. cannot install windows as a subcontractor by the date provided if construction of the building has not reached the proper stage…
3. Frustration of Purpose: something that is basic assumption of the contract cannot happen (quintessential case is rental on a specific day of a room with view of a king’s coronation, which was postponed.
4. Impracticabilty: aka “commercial impracticability,” is the U.C.C. Article 2 version of “impossible.” See U.C.C. § Excuse by Failure of Presupposed Conditions.
6. Unconscionable (U.C.C. sale of goods): U.C.C. § – a generic provision that permits courts to deny enforcement of a contract, or of specific “unconscionable” clauses, where they are just too unfair or problematic. Not well defined, case law will flesh out parameters of this authority.
5. Unconscionable (common law): look for adhesion (unfair bargaining power of one party) and a truly unfair contract (making enforcement of it unconscionable). Ex.: Boilerplate, high pressure/no choice sales, uneducated buyer, no lawyer, etc.
The problems that may justify non-enforcement in these cases arise after formation.
These too may break down into “elements” for memorization. The information here focuses on their main requirement/difference.
Each of these probably only works if the claimant did not bear risk of the problem.
Interesting that FL. Standard Jury Instructions do not list these defenses – perhaps they fall under more generic “equitable defenses to formation.”
Watch for confusion/overlap as these share significant similarities.
© 2018 Paul J. Carrier, Paul J Carrier, LLC Blue – Category Recognition; White – Specific Category; Yellow – “Black Letter” Rules (to be memorized); Green – Main Factual Issues – Analysis; Red – Upper-Level, Integrated Comprehension