How To Prove A Texas Impossibility (Impracticability) Defense
In Texas, a defense of Impossibility (Impracticability) is defined as:
Under contract law, Impossibility or Impracticability is an excuse for non-performance when an unforeseen event occurs after the contract is made which makes performance impossible. See also Frustration of Purpose.
It simply means:
A defense to carrying out obligations of a contract because it is impractical or impossible.
There are 5 elements of the defense:
- Element 1. There was a valid and enforceable contract between the parties. A valid and enforceable contract means that both parties agreed to specific terms that are legally binding, which is essential for claiming that fulfilling the contract has become impossible or impractical due to unforeseen circumstances beyond their control.
Facts that might support this element look like:
* The parties exchanged signed documents outlining the terms of the agreement, demonstrating mutual assent.
* Consideration was provided by both parties, with one party delivering goods and the other providing payment.
* The contract specified a clear timeline for performance, indicating the parties’ intent to be bound by its terms.
* Both parties acted in accordance with the contract for an extended period, establishing a pattern of compliance.
* The contract included a clause addressing unforeseen circumstances, indicating the parties anticipated potential obstacles to performance. - Element 2. One of the following significant, unforeseen events or circumstances occurred after the contract’s formation: (a) The death or incapacity of a person necessary for performance. (b) The destruction or deterioration of a thing necessary for performance. (c) Prevention of performance by governmental regulation or order. Impossibility occurs when an unexpected event, like the death of a key person, destruction of essential equipment, or a government order, makes it impossible to fulfill a contract, relieving the parties from their obligations.
Facts that might support this element look like:
* The primary contractor responsible for the project passed away unexpectedly, leaving the remaining team unable to fulfill their obligations.
* A fire destroyed the warehouse containing essential materials needed for the contract’s execution, making performance impossible.
* A new government regulation was enacted that prohibits the use of certain materials required for the project, preventing compliance with the contract.
* A sudden natural disaster rendered the construction site inaccessible, halting all progress on the project.
* The key supplier of necessary equipment declared bankruptcy, resulting in a complete inability to procure the items needed for performance. - Element 3. The occurrence of the event made it impossible to achieve the contract’s intended purpose. The event that happened made it so that the original goals of the contract couldn’t be met, meaning that fulfilling the contract became impossible due to circumstances beyond anyone’s control.
Facts that might support this element look like:
* The sudden government-imposed travel ban prevented the delivery of essential materials required for project completion.
* A natural disaster destroyed the primary venue for the event, rendering it impossible to host as planned.
* A key supplier went out of business unexpectedly, eliminating access to critical components necessary for fulfilling the contract.
* A pandemic outbreak led to widespread illness, making it unsafe for employees to perform their contractual duties.
* A change in law prohibited the execution of the contract, nullifying its intended purpose. - Element 4. The non-occurrence of the supervening event was a basic assumption on which the contract was made. The impossibility defense in a contract means that both parties assumed a specific event wouldn’t happen when they made the agreement, and if that event does occur, it can make fulfilling the contract impossible or extremely difficult.
Facts that might support this element look like:
* The parties entered into the contract with the mutual understanding that the specified event would occur as planned.
* Both parties acknowledged in their negotiations that the successful completion of the contract depended on the occurrence of the event.
* The contract explicitly stated that the performance obligations were contingent upon the event taking place.
* Prior to signing, the parties discussed the event’s significance and its expected impact on contract performance.
* The contract was drafted based on the assumption that no unforeseen circumstances would prevent the event from occurring. - Element 5. There was a good faith compliance with a government regulation or order. Good faith compliance with a government regulation means that a person or business made a genuine effort to follow the law or order, which can help them argue that they couldn’t fulfill a contract because they were trying to do the right thing under challenging circumstances.
Facts that might support this element look like:
* The defendant diligently followed all applicable government regulations and guidelines in the execution of the contract.
* The defendant sought clarification from regulatory authorities to ensure compliance with the relevant laws before proceeding with the project.
* The defendant maintained thorough documentation of all efforts made to comply with the government order throughout the duration of the contract.
* The defendant promptly notified the relevant authorities of any challenges encountered in meeting the regulatory requirements.
* The defendant implemented all recommended safety measures and protocols as outlined by the government to mitigate risks associated with the project.
(See Texas Business and Commerce Code – 2.615. Philips v. McNease, 467 SW 3d 688 – Tex: Court of Appeals 2015. Tractebel Energy Mktg., Inc. v. E.I. Du Pont De Nemours & Co., 118 S.W.3d 60, 65 (Tex.App.-Houston 2003. Philips v. McNease, 467 SW 3d 688 – Tex: Court of Appeals 2015.)
If you’re representing yourself in court and plan to assert a Defense of Impossibility (Impracticability), having a Personal Practice of Law at Courtroom5 is essential. You’ll need to make informed decisions about what to file at each phase of your case and prepare legal documents that are supported by thorough legal research and a strong analysis of the facts. Equip yourself with the tools and knowledge necessary to effectively present your Defense.
Prove Your TX Impossibility (Impracticability) Defense
U.S. Civil Cases Only