12901
*12901-C.-8-1*
12901
Institution Harvard Law School
Course / Session Coates- Contracts 7 take-home
Control Code N/A
Instructor NA
Extegrity Exam4 >
12901-C.-8-1
Section . Page 1 of 8
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Institution Harvard Law School
Printed on February 17, 2009
Course Coates- Contracts 7 take-home
Instructor NA
Control Code N/A
Exam ID 12901
Word Count(s)
Section 1 996
Section 2 1009
12901
*12901-C.-8-2*
12901
Institution Harvard Law School
Course / Session Coates- Contracts 7 take-home
Control Code N/A
Instructor NA
Extegrity Exam4 >
12901-C.-8-2
Section . Page 2 of 8
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Answer-to-Question-_1_
(1) Evolution from rule to standard: impossibility.
The evolution of the doctrine of impossibility into the more expansive doctrine of impracticability
represents a clear shift from a bright-line rule to a more flexible standard. The court inAmerican
Trading v. Shell expressed this loosened standard, saying, “American law [now] recognizes that
performance is rendered impossible if it can only be accomplished with extreme and
unreasonable difficulty, expense, injury, or loss.” The “extreme and unreasonable” language
follows the Restatement(2) §261-72, while the UCC 2-615 contains even more lenient language,
requiring only good faith following the violation of a “basic assumption” of the contract. While
not without caveats, this loosening seems justified by both economic analysis of cost
minimization and moral perspectives on individual justice.
For the sake of determining costs, the older doctrine of impossibility can be considered as either a
fully-specified series of rules or a single, broadly-applicable rule. For a fully-specified
impossibility rule, the front-end bargaining and subsequent administration costs of enumerating a
default for