What is the defense of impossibility?

The doctrine of impossibility is an affirmative defense that excuses certain breaches of contract. (“Affirmative defense” means a defense raised by the defendant in answering a complaint alleging breach of contract). Generally, the defense applies when someone makes a promise, they are unable to perform because of a change in circumstances that occurred after the contract was entered into. In legalese this is referred to as a “supervening impossibility”. Another key point is the doctrine recognizes that the contract is valid and enforceable, but when a court or jury finds that the doctrine applies, the doctrines operate to excuse performance. The defense of impossibility is distinct from a force majeure clause in a contract because the defense need not be in a contract, whereas a force majeure clause is a specific contractual provision that may define conditions in which performance is excused.

When might the doctrine of impossibility apply?

Typically, impossibility may excuse a party from performing its contractual obligation in circumstances such acts of God, supervening illegality, death or disability of a person required to perform, war, and labor strikes. The defense does not apply if the person who seeks to be excused from performing is at fault for making the performance impossible in the first place.

Image result for impossible

What is not a supervening circumstance that makes performance impossible?

Financial hardship and most unexpected difficulties. Courts are nearly uniform in ruling that a price increase, or an increase in the burden of performing, even if unanticipated, is not sufficient to establish that performing a contractual promise was impossible. A key issue is whether the risk was one that reasonably should have been anticipated at the time of contract formation and, if so, whether it should have been addressed in the contract.

What have courts said about impossibility in the context of epi(pan)demics like COVID-19?

Naturally, no case concerning COVID-19 and impossibility has yet found its way through the courts. [Edit: see update below.] But courts considered such questions a century ago in connection with influenza and diphtheria outbreaks:

  • Crane v. School Dist. No. 14 of Tillamook Cty., 95 Or. 644 (1920) holding that the closing of a school by a health officer on account of an influenza epidemic was not a sufficient to establish the defense of impossibility because, in part, the closing of the school did not necessarily suspend the need for transporting students.
  • Gregg School Township v. Hinshaw, 76 Ind. App. 503 (1921) holding that where a school closed because of a flu epidemic, a district’s contract with a teacher was impossible to perform and the teacher was not entitled to payment for the period the school was closed because of the epidemic.
  • Napier v. Trace Fork Mining Co., 193 Ky. 291 (1921) holding that where a construction contract entitled a contractor to a bonus payment for completing the work before a certain date, the contractor’s completion after that date did not entitle the contractor to the bonus payment even though performance before that date was rendered impossible by the prevalence of the influenza epidemic.
  • Sandry v. Brookyn Sch. Dist. No. 78, 47 N.D. 444 (1921) holding that a school district was excused under the impossibility doctrine from paying a school bus driver during a three-month period in which the school was closed because an influenza epidemic.
  • Phelps v. School Dist. No. 109, 134 N.E. 312 (Ill. 1922) holding a school not relieved of liability to pay teacher during a closure caused by diphtheria because the spread of a contagious epidemic was something foreseeable that could have been addressed in a contract of employment.
  • Poss v. The Western Assurance Co., 75 Tenn. 704 (1881) holding a policy of insurance against loss by fire that voided coverage if manufacturing “shall cease to be operated” did not apply where the factory temporarily shut down because of a deadly epidemic.

Before a landlord responds to a tenant’s claim that the lease is impossible to perform, both the lease and local law should be reviewed. Impossibility does not dispute the validity of the contract but is a legal excuse that might allow a court to not hold a party liable for failing to perform their end of a bargain.

[UPDATE 2/12/22] Meng v. Rahmi, 2022 OK 11 (Okla. 2022) In this appeal of a Small Claims Court case brought by the landlord of a commercial property against a tenant for past due rent and eviction, the Oklahoma Supreme Court holds that the trial court erred when it precluded the tenant from presenting testimony in support of tenant’s affirmative defense that rent was not due on account of frustration of purpose and impracticability as a result of limitations on tenant’s ability to operate its business (a massage parlor) due to Covid-19. The Court reached this conclusion despite the fact that the commercial lease at issue expressly excluded any right to rent abatement as a result of any interruptions to tenant’s business outside of the control of the landlord.  

As noted by the dissent in Meng, to permit the affirmative defense of supervening impossibility to apply to a commercial tenant’s duty to pay rent raises countless questions: does it apply to every commercial tenant? If not, what are the criteria to qualify for such relief? What about commercial tenants operating during the pandemic but still losing business? Allowing supervening impossibility as a defense to the duty to pay rent will yield inconsistent and unfair results for all other commercial tenants and landlords. The Court should not have ignored the language in the parties’ commercial lease or the fact that landlords have specific obligations from their ownership of the building that they have to meet despite tenants refusing to pay rent. But the Court did, and now owners of commercial properties in Oklahoma must rethink their force majeure clauses.