The doctrine of impossibility applies in a situation where it is literally impossible for a party to a contract to perform their duties. The Florida court system generally has an interest in holding parties to the contract they sign and the duties assigned under that contract. Impossibility is a high standard, lack of performance cannot be excused by mere inconvenience, expense, or other non-impossible circumstances.
An example where impossibility would apply is if you had a contract to perform in an opera house and before the performance lightning strikes the building and burns it down. Depending on the specific facts of the contract, if your performance could only be completed within the opera house, you may have a defense of impossibility for a potential breach of contract claim. This example is simply for illustrative purposes and would depend on the specific circumstances of the contract and surrounding events.
When can a Business Lawyer use the Doctrine of Impossibility?
Impossibility is a defense to a breach of contract claim. It is a very fact-specific inquiry that will heavily rely on the specific circumstances surrounding the contract, expected timing of performance and outside factors. Even if it is deemed that it is impossible to perform the contract, a party may not use the doctrine of impossibility if they could have acted to prevent the act rending it impossible.
Impossibility is a common law defense, and may be asserted even when a Force Majeure event does not exist.
What is the Difference Between Impossibility Clause and Force Majeure in Florida?
Force majeure is sometimes referred to as “acts of God”, and is a clause the is intended to relieve the duty to perform under a contract under specific circumstances. Some clauses list triggering events like earthquakes, floods, fires, hurricane, or epidemics. Other clauses list broader catchall language.
In Florida, the scope of a force majeure clause is generally greater than the scope of impossibility. Unlike many other states, Florida does not limit force majeure clauses to unforeseeable events. But like impossibility, force majeure is not intended to excuse normal risks under a contract.