American Contract Law for a Global Age, 2017a

economic circumstances sufficiently disastrous to justify discharge for
impracticability. There were “alternatives,” the court says, “which might have
precluded unilateral termination of the contract.”
Whether the “alternative” the court suggests ever occurred to IH’s
management, or, if considered, was a feasible business solution, is entirely irrelevant
on this appeal because it is the jury, not this court, that is empowered to determine
whether IH proved impracticability of performance as that defense was defined by
the trial court.
Since there is nothing in the jurisprudence of the impracticability defense to
suggest that a market collapse of the kind shown by IH is not, as a matter of law,
within the doctrine, we are not free to disturb the jury’s verdict.
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Review Question 1. “Impracticability” seems to mean something more than
the prospect of losing lots and lots of money and going bankrupt as a result, but it
also seems to mean something less than performance of a contract being literally
impossible. What exactly is impracticability? What sort of additional facts can you
imagine where, if International Harvester had proven them, it could have reached
the jury in impracticability?
Review Question 2. The excuse of “frustration of purpose requires proof of “the
occurrence of an event the non-occurrence of which was a basic assumption on which
the contract was made.” At the time of its 1974 dealership agreement with Karl
Wendt Farm Equipment, International Harvester surely assumed that it would
maintain the farm equipment division it sold in 1985. Why, then, does International
Harvester not succeed in proving frustration of purpose?
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BUSH v. PROTRAVEL INTERNATIONAL, INC.
Civil Court of the City of New York
192 Misc. 2d 743, 746 N.Y.S.2d 790 (Civ. Ct. 2002)
VITALIANO, J.
Dreams of a honeymoon safari in East Africa dashed offer fresh evidence of
how the terror attack on the World Trade Center of September 11, 2001 has shredded
the lives of ordinary New Yorkers and has engendered still continuing reverberations
in decisional law. What might have ordinarily warranted summary disposition in
favor of the safari company and its travel agent, pinning on the traveler the economic
burden of trip cancellation, cannot, in the wake of September 11th, be sustained here
on their motion for summary judgment.
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460 CHAPTER VII: PERFORMANCE AND BREACH