Mission Impracticable: The Impossibility of Commercial Impracticability

13 U.N.H. L. Rev. (2014, Forthcoming)

28 Pages Posted: 14 Jun 2014 Last revised: 27 Aug 2014

See all articles by Jennifer Camero

Jennifer Camero

Southern Illinois University School of Law

Date Written: June 12, 2014

Abstract

The recent global financial crisis, accurately named the Great Recession, negatively affected almost every individual and company in the United States. Unprecedented debt levels, substantial unemployment, decreased spending, and lending freezes left many companies unable to perform their contractual obligations. To avoid damages for breach of contract, some of those companies unsuccessfully sought judicial excuse under the doctrine of commercial impracticability.

An off-shoot of impossibility, commercial impracticability permits a court to excuse an obligor when her obligation under a contract becomes commercially impracticable. Contrary to the intent of the drafters of both UCC Article 2 and the Restatements (Second) of Contracts, judges narrowly construe and apply commercial impracticability relying on unfounded and irrelevant inquiries. The result is a confusing and unpredictable doctrine.

Past articles have analyzed commercial impracticability in isolated spheres, focusing only on Article 2, a particular set of circumstances, a specific judicial decision, or a particular method of analysis. This article instead analyzes commercial impracticability in a more comprehensive manner then provides a recommendation that simplifies and clarifies commercial impracticability and unifies the application of the doctrine across contract law.

Keywords: commercial impracticability; contracts; UCC; Uniform Commercial Code; Article 2; Restatements (Second) of Contracts

Suggested Citation

Camero, Jennifer, Mission Impracticable: The Impossibility of Commercial Impracticability (June 12, 2014). 13 U.N.H. L. Rev. (2014, Forthcoming), Available at SSRN: https://ssrn.com/abstract=2449566 or http://dx.doi.org/10.2139/ssrn.2449566

Jennifer Camero (Contact Author)

Southern Illinois University School of Law ( email )

1150 Douglas Drive
Carbondale, IL 62902
United States
773-710-4951 (Phone)

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