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Orlando Breach Of Contract Attorney Answers FAQs

What If After Signing A Valid And Enforceable Contract, Things Change Making The Duties/Responsibilities Under The Contract Difficult To Comply With?

This is a very difficult question to answer, because it hinges on the type and extent of the difficulty, the breach of contract at issue, the industry involved and the parties' course of dealing, course of performance and usage of trade. That said, there are couple of defenses to performance which may be applicable. The two most common ones include discharge by impossibility and discharge by impracticability. Discharge by impossibility is measured by an objective standard, meaning nobody could perform according to the terms of the contract arising after the contract was entered into. (If impossibility already existed at the time the contract was formed, this becomes a contract formation issue, - namely, whether the contract is voidable because of a mistake.) It is important to keep in mind that the non-occurrence of the event resulting in an impossible to perform situation, must have been a basic assumption at the time of the agreement, where neither party expressly or impliedly assumed the risk of the event. If an impossibility only discharges part of the performance, performance of the remainder may still be required, and if a party has rendered part performance prior to the occurrence of the impossibility, recovery in quasi-contract could be warranted. If the impossibility is only temporary, performance of contractual duties may only be suspended, instead of being permanently discharged. An example would be a situation whereby a subsequently enacted law renders the subject matter of the contract illegal (mere regulation may not be sufficient).

Unlike impossibility, impracticability occurs when a major change in circumstances renders performance extremely and unreasonably difficult. For instance, an unprecedented substantial expense that was not anticipated at the time the contract was made, could under the right circumstances, give rise to impracticability. This is the general rule under common law applicable to contract for services. For sale of goods, the Article 2 of the Uniform Commercial Code allows seller's duty to be discharged when performance would be rendered impracticable, and if the nonoccurrence of the situation was a basic assumption and unforeseeable at the time the contract was entered into. The standard in these situations is quite high, and a mere change in the difficulty or expense due to normal risks that could have been anticipated, - such as an increase in cost of construction, price of raw materials or wages, - is not likely to warrant discharge. In addition, the rules spelled out above for temporary and partial impracticability, are equally applicable to matters of impracticability discussed in this paragraph.

Another closely related situation is based on frustration of buyer's primary purpose, which also acts to excuse performance. This scenario is applicable if seller had knowledge of buyer's purpose and the purpose was later destroyed by an unforeseen event. However, an event causing a transaction to be less profitable to a party, in of itself, is not enough to rise to this level.

Examples capable of rendering performance impracticable or impossible include crop failure, unforeseen wars, embargoes, illegality, natural catastrophes (also known as "act of God," "force majeure," or "actum deus") and other similar incidents of the sort. In these situations, a seller may have an obligation to notify the buyer of the delay or lack of delivery. Of particular note is subsequent damage or destruction. Under common law, a subsequent destruction (or substantial damage) of the subject matter of the contract, or the source necessary to fulfill the agreement, would excuse performance, if it became truly impossible to fulfill the terms of the contract at any price and if promisor was not at fault. In this respect, an important distinction is made between destruction of the subject matter of a contract to build from destruction of the subject matter of a contract to repair. In a breach of contract to build, if the subject matter is accidently destroyed (for example, when a house being built is destroyed by an earthquake), the builder's performance is not discharged by impossibility because he or she is still capable of rebuilding anew. However, when the subject matter of a contract to repair is accidentally destroyed (a house getting a final paint job is destroyed by accidental fire) performance could be discharged by impossibility because of the fact that nothing is left to repair

It is important to remember that while these principals have a general application, additional state and federal laws, exceptions, relevant doctrines and other criteria could be relevant to specific breach of contract circumstances. It is therefore not intended and does not replace the advice of an experienced business litigation attorney in Florida. You are therefore urged to seek professional advice before making any decisions because different circumstances and facts are inherent in every individual situation. A Florida licensed business attorney can ascertain the applicable federal, state, regulatory, and common laws, including any contractual obligations, to determine your appropriate course of action.

Contacting our Breach of Contract Attorney

Do you need a breach of contract attorney in Orlando or anywhere in Central Florida? If so, please contact Jonathan K. Allen for experienced legal advice and to ensure that your interests are properly protected. Mr. Allen have helped many business owners in the past and would be honored to help you to. Call us today at (407) 205-2330 or fill out the online form provided on this page and we will contact you shortly. We value your privacy and will keep any information you provide strictly confidential.

Please feel free to visit our breach of contract page for detailed information on breach of contract under Florida Law.


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