1. A fact or circumstance that excuses a party from performing an act, esp. a contractual duty, because (though possible) it would cause extreme and unreasonable difficulty. • For performance to be truly impracticable, the duty must become much more difficult or much more expensive to perform, and this difficulty or expense must have been unanticipated. [Cases: Contracts 309(1). C.J.S. Contracts §§ 520–522, 524.]
2. The doctrine by which such a fact or circumstance excuses performance. Cf. FRUSTRATION(2); IMPOSSIBILITY(4).
commercial impracticability. The occurrence of a contingency whose nonoccurrence was an assumption in the contract, as a result of which one party cannot perform. [Cases: Contracts 309(1). C.J.S. Contracts §§ 520–522, 524.]
“The doctrines of Impossibility, Commercial Impracticability or as the Uniform Commercial Code knows it, Excuse by Failure of Presupposed Conditions, comprise unclimbed peaks of contract doctrine. Clearly, all of the famous early and mid-twentieth century mountaineers, Corbin, Williston, Farnsworth and many lesser men have made attempts on this topic but none has succeeded in conquering the very summit…. In spite of attempts by all of the contract buffs and even in the face of eloquent and persuasive general statements, it remains impossible to predict with accuracy how the law will apply to a variety of relatively common cases. Both the cases and the Code commentary are full of weasel words such as ‘severe’ shortage, ‘marked’ increase, ‘basic’ assumptions, and ‘force majeure.’ ” James J. White & Robert S. Summers, Uniform Commercial Code § 3-9, at 155 (3d ed. 1988).
