Business and Commercial Litigation
Contract Claims
The defense requires an unforeseen event, that the event's non-occurrence was a basic assumption of the contract, and that the party seeking excuse did not assume the risk. Modern doctrine extends to commercial impracticability.
Increased cost alone rarely suffices.
Alternative Names:
Impossibility|Impracticability
Why it Matters?
Foreseeability defeats the defense, and courts hold that an event the parties could have anticipated was one they allocated by contracting or failing to. Increased cost is the recurring failed argument, since impracticability requires extreme and unreasonable difficulty rather than reduced profitability. A force majeure clause covering the event displaces the common law doctrine and governs instead, which makes the clause the first place to look.
Frequently Confused with
Related terms
Frequently asked questions
Does increased cost excuse performance?
How does a force majeure clause interact?
