Impossibility of Performance: When Contracts Cannot Be Fulfilled
What Is Impossibility of Performance?
Impossibility of performance is a legal doctrine that excuses a party from fulfilling their contractual obligations when performance has become truly impossible due to circumstances beyond their control. It applies when an unforeseen event makes the contract literally incapable of being performed — not merely more difficult or expensive.
Types of Impossibility
- Objective impossibility — no one could perform the obligation (e.g., the subject matter has been destroyed). This excuses performance.
- Subjective impossibility — this particular party cannot perform, but someone else could (e.g., running out of money). This generally does not excuse performance.
Common Grounds
Courts have recognized impossibility in situations involving:
- Destruction of the subject matter — the specific thing needed for performance is destroyed (e.g., a building burns down before the lease starts)
- Death or incapacity — in personal service contracts where the specific individual can no longer perform
- Supervening illegality — a new law or regulation makes performance illegal
- Act of God — natural disasters that make performance physically impossible
What Does Not Qualify
- Increased costs or financial hardship (this may fall under impracticability instead)
- Market changes that make the deal unfavorable
- Difficulty sourcing materials from preferred suppliers when alternatives exist
- Events that were foreseeable at the time of contracting
Relationship to Force Majeure
Force majeure clauses in contracts often address the same scenarios but provide a contractual framework (rather than relying on common law doctrine) for allocating risk when extraordinary events occur.
When to Consult a Lawyer
Consider seeking legal advice if an event has made your contractual obligations potentially impossible, as the distinction between true impossibility and mere difficulty is legally significant.
This article is for informational purposes only and does not constitute legal advice. Consult a licensed attorney for guidance specific to your situation.