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Foundational Principles of Contract Law$
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Melvin A. Eisenberg

Print publication date: 2018

Print ISBN-13: 9780199731404

Published to Oxford Scholarship Online: October 2018

DOI: 10.1093/oso/9780199731404.001.0001

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The Effects of Unexpected Circumstances—Impossibility, Impracticability, and Frustration

The Effects of Unexpected Circumstances—Impossibility, Impracticability, and Frustration

Chapter:
(p.625) Forty-Five The Effects of Unexpected Circumstances—Impossibility, Impracticability, and Frustration
Source:
Foundational Principles of Contract Law
Author(s):

Melvin A. Eisenberg

Publisher:
Oxford University Press
DOI:10.1093/oso/9780199731404.003.0045

In unexpected circumstances cases relief normally should be granted to the adversely affected party if the parties shared a tacit incorrect assumption that the nonoccurrence of some circumstance during the life of the contract was certain rather than problematic, and the incorrectness of that assumption would have provided a basis for judicial relief if the assumption had been explicit rather than tacit. Relief should also normally be granted to the adversely affected party if as a result of a dramatic and unexpected general rise in prices, and therefore costs, performance would result in an unbargained-for loss to a promisor. Where judicial relief is based on a shared tacit assumption the promisor should not be liable for expectation damages. Where relief is based on an unbargained-for risk the promisor should be liable for a modified form of expectation damages.

Keywords:   unexpected circumstances, impossibility, impracticability, frustration, tacit assumptions, unbargained-for losses

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