Impossibility (defense)

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Under Florida contract law, the defense of “impossibility” may be asserted in situations “where purposes for which the contract was made, have, on one side become impossible to perform.” Bland v. Freightliner, LLC, 206 F.Supp.2d 1202, 1208 (M.D.Fla.2002) (citing Crown Ice Machine Leasing Co. v. Sam Senter Farms, Inc., 174 So.2d 614, 617 (Fla. 1965)). “Acts of God” and governmental action are among several types of business risks which implicate the impossibility defense. Cook v. Deltona Corp., 753 F.2d 1552, 1557 (11th Cir.1985) (government regulations); Holly Hill Fruit Prods. Co., Inc. v. Bob Staton, Inc., 275 So.2d 583, 584 (Fla. 2d DCA 1973) (weather). However, “[t]he doctrine of impossibility of performance should be employed with great caution if the relevant business risk was foreseeable at the inception of the agreement and could have been the subject of an express provision of the agreement.” Am. Aviation, Inc. v. Aero-Flight Serv., Inc., 712 So.2d 809, 810 (Fla. 4th DCA 1998). In such cases, an inference arises that the party who naturally bears the risk chose to assume it. Id.; Harvey v. Lake Buena Vista Resort, LLC, 568 F. Supp. 2d 1354, 1367 (M.D. Fla. 2008) aff'd, 306 Fed. Appx. 471 (11th Cir. 2009).

By recognizing impossibility as a sort of ‘escape hatch’ from the self-made chamber of contractual duty, the courts have recognized that absolute contractual liability is economically and socially unworkable. Impossibility accommodates the tension between the changes a party bargains to avoid and the changes, unbargained for and radical, that make enforcement of the bargain unwise. Harvey v. Lake Buena Vista Resort, LLC, 568 F. Supp. 2d 1354, 1368 (M.D. Fla. 2008) aff'd, 306 Fed. Appx. 471 (11th Cir. 2009)

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