Force majeure

Except so far as a seller may have assumed a greater obligation and subject to Section 7-2-614 on substituted performance: (a) Delay in delivery or nondelivery in whole or in part by a seller who complies with paragraphs (b) and (c) is not a breach of his duty under a contract for sale if performance as agreed has been made impracticable by the occurrence of a contingency the nonoccurrence of which was a basic assumption on which the contract was made or by compliance in good faith with any applicable foreign or domestic governmental regulation or order whether or not it later proves to be invalid.

(1) Where without fault of either party the agreed berthing, loading, or unloading facilities fail or an agreed type of carrier becomes unavailable or the agreed manner of delivery otherwise becomes commercially impracticable but a commercially reasonable substitute is available, such substitute performance must be tendered and accepted.

(1) Where the buyer receives notification of a material or indefinite delay or an allocation justified under Section 7-2-615, he may by written notification to the seller as to any delivery concerned, and where the prospective deficiency substantially impairs the value of the whole contract under the provisions of this article relating to breach of installment contracts (Section 7-2-612), then also as to the whole: (a) Terminate and thereby discharge any unexecuted portion of the contract; or (b) Modify the contract by agreeing to take his available quota in substitution. (2) If after receipt of such notification from the seller the buyer fails so to modify the contract within a reasonable time not exceeding 30 days the contract lapses with respect to any deliveries affected. (3) The provisions of this section may not be negated by agreement except insofar as the seller has assumed a greater obligation under Section 7-2-615.

(b) Where the causes mentioned in paragraph (a) affect only a part of the seller’s capacity to perform, he must allocate production and deliveries among his customers but may at his option include regular customers not then under contract as well as his own requirements for further manufacture. He may so allocate in any manner which is fair and reasonable. (c) The seller must notify the buyer seasonably that there will be delay or nondelivery and, when allocation is required under paragraph (b), of the estimated quota thus made available for the buyer.

Where one by his contract undertakes an obligation which is absolute, he is bound to perform within the terms of the contract or answer in damages, despite an act of God, unexpected difficulty, or hardship, because these contingencies could have been provided against by his contract.

Alpine contends that its late performance is entitled to be excused under the doctrine of impossibility of performance, but fails to cite any Alabama cases in support of its position. Under Alabama law, a promisor is held strictly to the literal terms of his promise.

It is true that equity recognizes an exception which generally will relieve a party of strict compliance with the time of performance in a contract; but this applies only where the contract does not expressly or implicitly, by its nature and purpose, make time an essential part of the agreement. Hunter-Benn & Co. Company v. Bassett Lumber Co., 224 Ala. 215, 139 So. 348 (1932). The contract before us expressly states that "[t]he attention of Bidders is especially directed to the time required for completion of the work required under this contract" and then goes on to specify liquidated damages for "failure to complete on time."

Here, the trial Court held the contract to be clear and unambiguous and, as such, its interpretation was for the court and not for the jury. The contract provides for extensions of time, within the discretion of the contractee's engineer, for delays caused by construction changes ordered by the engineer, or by fire, lightning, earthquake, tornado, cyclone, riot, insurrection or war, and for on-site personnel or labor problems: "SEC. 20—EXTENSION OF TIME "The Contractor expressly covenants and agrees that in undertaking to complete the entire work within the time stated in the contract, he has taken into consideration and made allowance for all of the ordinary delays and hindrances incident to such work, whether growing out of delays in securing materials or workmen, or otherwise. Should the contractor, however, be substantially delayed in the prosecution and completion of the work by any changes, additions, or omissions therein ordered in writing by the Engineer, or by fire, lightning, earthquake, tornado, cyclone, riot, insurrection or war, or by the abandonment of the work by the workmen engaged therein through no fault of the Contractor, or by the discharge of all or any material number of workmen engaged therein through no fault of the Contractor, or by the discharge of all or any material number of workmen in consequence of difficulties arising between the Contractor and such workmen, or by the neglect, delay or default of any other Contractor of the Owner, the Contractor may, within five (5) days after the occurrence of the delay for which he claims allowance, notify the Engineer thereof in writing, and thereupon, and not otherwise, the Contractor shall be allowed such additional time for the completion of the work as the Engineer in his discretion shall award in writing."

Thus, Alpine's reason for delay does not fall within any of the categories of excused delay enumerated by the contract, and the trial Court properly directed verdict for the Defendant on this issue. Moreover the record in this case discloses that Alpine was 401 days late in completing its contract which, at the rate of $100 per day would have amounted to $40,100 in liquidated damages instead of the $30,000 actually assessed. Alpine, in fact, received an extension of 101 days. AFFIRMED.

We hold that APAC's delays were not excusable and that it is bound by the contract and subject to the liquidated damages provision. Therefore, we hold that Cove Creek was within its rights under the liquidated damages provision to withhold $81,509.12 for the 285-day delay. Accordingly, the judgment of the trial court is reversed and a judgment is rendered in favor of Cove Creek. REVERSED AND JUDGMENT RENDERED.

Alabama has consistently enforced building contracts that contain liquidated damages provisions that specify that for each day's delay in completion beyond a fixed date the contractor will be liable for a fixed sum. The sole caveat in this enforcement is that the liquidated damages provision must not be a penalty.

The contract also provided for adjustments to the completion date made necessary by unavoidable delays, overruns, or additions to the contract: "In arriving at any credit due the contractor [APAC] for an extension of time on the contract, the owner [Cove Creek], upon the recommendation of the engineer, *Page 461 may allow such credit as in his judgment is deemed equitable and just for all delays occasioned by any act, or failure to act, on the part of the contractor or caused by forces beyond the contractor's control. Additional time will also be allowed the contractor to cover approved overruns or additions to the contract in the same proportion that the said over-runs or additions in monetary value bears to the original contract amount. ". . . . "Time extensions may be granted upon proper justification by the contractor. Any claim for time extensions under these provisions shall be submitted in writing to the engineer not more than twenty (20) days following commencement of the delay; otherwise the claim will be waived." The above provisions were the sole remedy provided in the contract for any delay in the construction.

As the above-quoted portion of the contract shows, all of the allegedly unavoidable delays were covered by the contract. APAC was apparently aware of these provisions regarding completion date extensions, because it took advantage of those provisions in obtaining a 45-day extension on the grounds that R M's utility work had caused it to abandon the construction site. Even with this extension, however, APAC completed its work under the contract 285 days late. Further, in spite of the fact that APAC was aware of the lengthening delay, APAC never sought any other extension under the contract.

Except so far as a seller may have assumed a greater obligation and subject to the preceding section on substituted performance, (1) delay in delivery or nondelivery in whole or in part by a seller who complies with (2) and (3) of this section is not a breach of the seller's duty under a contract for sale if performance as agreed has been made impracticable by the occurrence of a contingency, the nonoccurrence of which was a basic assumption on which the contract was made or by compliance in good faith with an applicable foreign or domestic governmental regulation or order whether or not it later proves to be invalid;

if the causes mentioned in (1) of this section affect only a part of the seller's capacity to perform, the seller must allocate production and deliveries among the seller's customers, but may at the seller's option include regular customers not then under contract as well as the seller's own requirements for further manufacture; the seller may so allocate in a manner that is fair and reasonable;

the seller must notify the buyer seasonably that there will be delay or nondelivery and, when allocation is required under (2) of this section, of the estimated quota thus made available for the buyer.

If without fault of either party the agreed berthing, loading, or unloading facilities fail or an agreed type of carrier becomes unavailable or the agreed manner of delivery otherwise becomes commercially impracticable but a commercially reasonable substitute is available, the substitute performance must be tendered and accepted.

Alaska has adopted the Restatement doctrine whereby commercial impracticability may under certain circumstances justify regarding a contract as impossible to perform.

a party is discharged from his contract obligations, even if it is technically possible to perform them, if the costs of performance would be so disproportionate to that reasonably contemplated by the parties as to make the contract totally impractical in a commercial sense.

Despite the fact that no change order was actually issued by Chugach, we hold that it should be held liable for Northern’s increased costs incurred after such time as Chugach was reasonably placed on notice that it was not feasible to perform the contract by means of the ice haul method.

The want of performance of an obligation, or of an offer of performance, in whole or in part, or any delay therein, is excused by the following causes, to the extent to which they operate: 1. When such performance or offer is prevented or delayed by the act of the creditor, or by the operation of law, even though there may have been a stipulation that this shall not be an excuse; however, the parties may expressly require in a contract that the party relying on the provisions of this paragraph give written notice to the other party or parties, within a reasonable time after the occurrence of the event excusing performance, of an intention to claim an extension of time or of an intention to bring suit or of any other similar or related intent, provided the requirement of such notice is reasonable and just; 2. When it is prevented or delayed by an irresistible, superhuman cause, or by the act of public enemies of this state or of the United States, unless the parties have expressly agreed to the contrary; or, 3. When the debtor is induced not to make it, by any act of the creditor intended or naturally tending to have that effect, done at or before the time at which such performance or offer may be made, and not rescinded before that time.

An owner who is a party to a construction contract is a creditor within the meaning of section 1511 (Semas v. Bergmann, 178 Cal.App.2d 758, 762 [ 3 Cal.Rptr. 277 ]), and, as the italicized portion of the section makes clear, a provision in an agreement that the contractor is not to be excused for late completion caused by the owner is rendered inoperative by the statute. A provision in a contract which would require the contractor to make an application for an extension of time before he may be excused for a delay caused by the owner's conduct would obviously constitute a substantial limitation on the policy declared by section 1511.

In the published part of our opinion, we hold that this aspect of Peter Kiewit was superseded by a 1965 amendment to Civil Code section 1511, which allows parties to specify in a contract that a party intending to avoid the effect of its failure to perform by asserting that the other party’s act caused the failure must give written notice of this intention within a reasonable time. In this case, the contractual provisions requiring certain procedures to be followed by a party requesting an extension of time *1110 amounted to the type of specification contemplated by the amendment to Civil Code section 1511. Since Opinski did not follow those procedures to claim an extension of time, it cannot rely on Peter Kiewit, and the trial court was correct to enforce the procedural requirements of the contract.

Applying these principles, we conclude that the doc- trine of impossibility or impracticability did not excuse the defendants from their obligations to the plaintiff under the lease agreement.

Given the narrowness of the frustration of purpose doctrine, we conclude that the purpose of the lease agreement was not frustrated by the pandemic restric- tions imposed by the executive orders, even those that barred indoor dining entirely. The language of the lease agreement was not limited to a certain type of dining and—in contrast to the more restrictive language con- tained in the sister state cases on which the defendants rely—did not preclude the takeout and subsequent out- door dining that the defendants sought to provide. Put differently, the lease terms did not by themselves render the lease agreement valueless in light of the executive orders.

Second, the language of the lease agreement suggests that events of the magnitude of the COVID-19 pandemic were not entirely unforeseeable.

Although the COVID-19 restrictions had undoubtedly serious economic consequences for the viability of the bistro—in particular, the initial closure for indoor dining, followed by the loss of bar business and a reopening for indoor dining only with a drastic reduction in capacity—they did not, by themselves, make performance under the lease agreement impossi- ble or commercially impracticable as a matter of law.20 Instead, they simply raised the cost of performance for the defendants in a manner that rendered it perhaps highly burdensome, but not factually impossible—akin to the outbreak of war, or the closure of the Suez Canal, which had been held not to discharge contractual duties under the doctrine of impossibility.

First, and most significant, as the trial court found, even under the most restrictive executive orders, use of the premises for restaurant purposes was not rendered factually impossible insofar as restaurants were permitted to provide curbside or takeout service, and the lease agreement did not pro- hibit curbside or takeout service.

The lease agreement lacks a force majeure clause that would govern the parties’ mutual obligations in the event of a crisis situa- tion beyond their control,21 and, to the extent that the lease agreement provides for any forgiveness of obliga- tion in a crisis situation (thus suggesting that they are foreseeable), it excuses only the plaintiff’s obliga- tions—under § 25 of the lease agreement governing ‘‘unavoidable delay’’ occasioned by a variety of circum- stances, including fire or ‘‘governmental [preemption] in connection with a national emergency . . . .’’

The judgment is reversed only with respect to the award of damages and the case is remanded for further proceedings as to damages; the judgment is affirmed in all other respects.

To the extent that our independent research has found authority that excused—at least in part—tenants from their rental obligations during COVID-19, that authority rests on distinguishable lease language, namely, force majeure clauses that governed this particular situation.

Except so far as a seller may have assumed a greater obligation and subject to the preceding section on substituted performance: (a) Delay in delivery or nondelivery in whole or in part by a seller who complies with paragraphs (b) and (c) is not a breach of his duty under a contract for sale if performance as agreed has been made impracticable by the occurrence of a contingency the nonoccurrence of which was a basic assumption on which the contract was made or by compliance in good faith with any applicable foreign or domestic governmental regulation or order whether or not it later proves to be invalid.

(b) Where the causes mentioned in paragraph (a) affect only a part of the seller’s capacity to perform, he must allocate production and deliveries among his customers but may at his option include regular customers not then under contract as well as his own requirements for further manufacture. He may so allocate in any manner which is fair and reasonable. (c) The seller must notify the buyer seasonably that there will be delay or nondelivery and, when allocation is required under paragraph (b), of the estimated quota thus made available for the buyer.

Where without fault of either party the agreed berthing, loading, or unloading facilities fail or an agreed type of carrier becomes unavailable or the agreed manner of delivery otherwise becomes commercially impracticable but a commercially reasonable substitute is available, such substitute performance must be tendered and accepted.

As a general rule, relief from a provision of a contract, in order to avoid frustration of the contract’s underlying purpose, will not be granted where the claimed grounds of frustration are merely personal to one of the parties. The frustration must be objective, rather than subjective, in nature.

In his brief on appeal, Martin’s counsel argues that the relationship between the parties has so deteriorated that they “are unable to trust each other.”

In this case, the record does not contain a showing of objective frustration. The district court did not find that Rasmussen was untrustworthy.

Upon this record, we sustain the district court’s ruling that Rasmussen’s obligation to provide future services should not be treated as a present debt. The judgment of the district court is affirmed. Costs, but no attorney fees, to respondents Rasmussen.

Except so far as a seller may have assumed a greater obligation and subject to the preceding section on substituted performance: (a) Delay in delivery or non-delivery in whole or in part by a seller who complies with paragraphs (b) and (c) is not a breach of his duty under a contract for sale if performance as agreed has been made impracticable by the occurrence of a contingency the non-occurrence of which was a basic assumption on which the contract was made or by compliance in good faith with any applicable foreign or domestic governmental regulation or order whether or not it later proves to be invalid.

(b) Where the causes mentioned in paragraph (a) affect only a part of the seller's capacity to perform, he must allocate production and deliveries among his customers but may at his option include regular customers not then under contract as well as his own requirements for further manufacture. He may so allocate in any manner which is fair and reasonable. (c) The seller must notify the buyer seasonably that there will be delay or non-delivery and, when allocation is required under paragraph (b), of the estimated quota thus made available for the buyer.

(1) Where without fault of either party the agreed berthing, loading, or unloading facilities fail or an agreed type of carrier becomes unavailable or the agreed manner of delivery otherwise becomes commercially impracticable but a commercially reasonable substitute is available, such substitute performance must be tendered and accepted.

(1) Where the buyer receives notification of a material or indefinite delay or an allocation justified under the preceding section he may by written notification to the seller as to any delivery concerned, and where the prospective deficiency substantially impairs the value of the whole contract under the provisions of this Article relating to breach of installment contracts (Section 2-612), then also as to the whole, (a) terminate and thereby discharge any unexecuted portion of the contract; or (b) modify the contract by agreeing to take his available quota in substitution. (2) If after receipt of such notification from the seller the buyer fails so to modify the contract within a reasonable time not exceeding 30 days the contract lapses with respect to any deliveries affected. (3) The provisions of this Section may not be negated by agreement except in so far as the seller has assumed a greater obligation under the preceding section.

(2) If the agreed means or manner of payment fails because of domestic or foreign governmental regulation, the seller may withhold or stop delivery unless the buyer provides a means or manner of payment which is commercially a substantial equivalent. If delivery has already been taken, payment by the means or in the manner provided by the regulation discharges the buyer's obligation unless the regulation is discriminatory, oppressive or predatory.

Except so far as a seller may have assumed a greater obligation and subject to section 554.2614 on substituted performance: 1. Delay in delivery or nondelivery in whole or in part by a seller who complies with subsections 2 and 3, is not a breach of the seller’s duty under a contract for sale if performance as agreed has been made impracticable by the occurrence of a contingency the nonoccurrence of which was a basic assumption on which the contract was made or by compliance in good faith with any applicable foreign or domestic governmental regulation or order whether or not it later proves to be invalid.

Where the causes mentioned in subsection 1 affect only a part of the seller’s capacity to perform, the seller must allocate production and deliveries among the seller’s customers but may at the seller’s option include regular customers not then under contract as well as the seller’s own requirements for further manufacture. The seller may so allocate in any manner which is fair and reasonable.

The seller must notify the buyer seasonably that there will be delay or nondelivery and, when allocation is required under subsection 2, of the estimated quota thus made available for the buyer.

Where without fault of either party the agreed berthing, loading, or unloading facilities fail or an agreed type of carrier becomes unavailable or the agreed manner of delivery otherwise becomes commercially impracticable but a commercially reasonable substitute is available, such substitute performance must be tendered and accepted.

Except so far as a seller may have assumed a greater obligation and subject to the preceding section on substituted performance: (a) Delay in delivery or nondelivery in whole or in part by a seller who complies with paragraphs (b) and (c) is not a breach of his duty under a contract for sale if performance as agreed has been made impracticable by the occurrence of a contingency the nonoccurrence of which was a basic assumption on which the contract was made or by compliance in good faith with any applicable foreign or domestic governmental regulation or order whether or not it later proves to be invalid.

Where the causes mentioned in paragraph (a) affect only a part of the seller's capacity to perform, he must allocate production and deliveries among his customers but may at his option include regular customers not then under contract as well as his own requirements for further manufacture. He may so allocate in any manner which is fair and reasonable.

The seller must notify the buyer seasonably that there will be delay or non-delivery and, when allocation is required under paragraph (b), of the estimated quota thus made available for the buyer.

The frustration of purpose doctrine is stated in the Restatement (Second) of Contracts § 265 (1979): “Where, after a contract- is made, a party’s principal purpose is substantially frustrated without his fault by the occurrence of an event the non-occurrence of which was a basic assumption on which the contract was made, his remaining duties to render performance are discharged, unless the language or the circumstances indicate the contrary.”

The first step in applying the doctrine is to determine whether the frustrated purpose was “so completely the basis of the contract that . . . without it the transaction would make little sense.” Restatement (Second) of Contracts § 265, comment a.

The Restatement defines the second element of the doctrine by stating: “[T]he frustration must be substantial. It is not enough that the transaction has become less profitable for the affected parly or even that [it] will sustain a loss. The frustration must be so severe that it is not fairly to be regarded as within the risks . . . assumed under the contract.” Restatement (Second) of Contracts § 265, comment a.

The third and final element of the doctrine is that the “nonoccurrence of the frustrating event must have been a basic assumption on which the contract was made.” Restatement (Second) of Contracts § 265, comment a.

Thus, the State does not meet the second element of the frustration of purpose doctrine because the frustration was not “so severe” that it is fairly regarded as within the risks assumed under the contract. Restatement (Second) of Contracts § 265, comment a.

The risk that Boley could only be sentenced to the lesser penalty was foreseeable and, admittedly, foreseen. Thus, contraiy to the Boley Court of Appeals’ holding, we conclude that the elements of the frustration of purpose doctrine were not met under the facts of this case.

The prosecutor could have protected against this risk by including a provision in the plea agreement requiring the defendant to waive his right to appeal or indicating that if the defendant successfully challenged his sentence, such action would be considered a breach of the agreement.

(1) Where without fault of either party the agreed berthing, loading, or unloading facilities fail or an agreed type of carrier becomes unavailable or the agreed manner of delivery otherwise becomes commercially impracticable but a commercially reasonable substitute is available, such substitute performance must be tendered and accepted.

An obligor is not liable for his failure to perform when it is caused by a fortuitous event that makes performance impossible.

A fortuitous event is one that, at the time the contract was made, could not have been reasonably foreseen.

When the entire performance owed by one party has become impossible because of a fortuitous event, the contract is dissolved. The other party may then recover any performance he has already rendered.

When a fortuitous event has made a party's performance impossible in part, the court may reduce the other party's counterperformance proportionally, or, according to the circumstances, may declare the contract dissolved.

Creole Gardens contends the obligation of result concept is supported by La. C.C. arts. 1994, 1873, and 1986, which, when read in paria materia, holds the obligor liable to the obligee for damages arising out of the obligor’s failure to perform a conventional obligation, unless the failure to perform was caused by a fortuitous event.

notwithstanding that confluence and any theoretical support for the doctrine provided by La. C.C. articles 1994, 1873, and 1986, Creole Gardens’ argument that the district court committed legal error in not applying the obligation of result doctrine is fundamentally flawed.

We conclude that Creole Gardens’ Petition asserts redhibition claims, contractual in nature, arising from an alleged breach of warranty of the thing sold by the sellers, the Schreibers. La. C.C. art. 2548 clearly delineates Creole Gardens’ rights as the buyer to acquire property free of redhibitory defects known by the Schreibers in an “as is” sale. Consequently, we find no legal error in the district court’s reliance on our redhibition statutes, particularly, La. C.C. art. 2548, to determine the Schreibers’ breach of warranty against fire code violations and Creole Gardens’ burden of proof. Accordingly, this assignment of error lacks merit.

An obligor is, however, liable for his failure to perform when he has assumed the risk of such a fortuitous event. An obligor is liable also when the fortuitous event occurred after he has been put in default. An obligor is likewise liable when the fortuitous event that caused his failure to perform has been preceded by his fault, without which the failure would not have occurred.

If a contract is dissolved because of a fortuitous event that occurred after an obligor has performed in part, the obligee is bound but only to the extent that he was enriched by the obligor's partial performance.

Art. 583. Ruin from accident, force majeure , or age Neither the usufructuary nor the naked owner is bound to restore property that has been totally destroyed through accident, force majeure , or age.

A force majeure clause is a provision in a contract providing that certain supervening events may excuse a party’s performance obligations.

Whether a force majeure clause applies to excuse a party’s performance depends on the clause’s language.

Unless otherwise indicated by the contract, the party seeking to have its nonperformance excused by the force majeure clause bears the burden of proof.

The District Court denied Oak Street’s complaint because it read the lease’s force majeure clause as partially excusing RDR Enterprises’ obligation to pay rent and concluded that RDR Enterprises did not breach the terms of the lease. This conclusion, however, is contrary to the unambiguous terms of the lease.

Our conclusion that Oak Street is entitled to possession of the property is further supported by 10 the fact that RDR Enterprises did not pay any of the rent owed. The language of the lease unambiguously provides that a failure to pay rent constitutes grounds for default of the lease. This means all the rent due. Hence, even if the concept of a partial excuse for nonperformance were applicable, nothing in the lease’s force majeure clause—or any other part of the lease—indicates that the obligation to pay the amount due under the lease would be completely discharged when part of the tenant’s duty to pay rent is excused by a force majeure event.

The entry is: Judgment vacated. Remanded to the Superior Court for remand to the District Court for entry of a judgment issuing a writ of possession to 55 Oak Street LLC.

is not a breach of his duty under a contract for sale, if performance as agreed has been made impracticable by the occurrence of a contingency the nonoccurrence of which was a basic assumption on which the contract was made or by compliance in good faith with any applicable foreign or domestic governmental regulation or order whether or not it later proves to be invalid.

Where the causes mentioned in subsection (1) affect only a part of the seller's capacity to perform, he must allocate production and deliveries among his customers but may at his option include regular customers not then under contract as well as his own requirements for further manufacture. He may so allocate in any manner which is fair and reasonable.

The seller must notify the buyer seasonably that there will be delay or nondelivery and, when allocation is required under subsection (2) , of the estimated quota thus made available for the buyer.

Neither party hereto will be liable for any failure to comply or delay in complying with its obligations hereunder if such failure or delay is, including but not limited to, due to acts of God

Because we conclude that the District Court erred as a matter of law in interpreting the contract, we need not reach this argument.

Except so far as a seller may have assumed a greater obligation and subject to section 2‑614 on substituted performance (1). Delay in delivery or nondelivery in whole or in part by a seller who complies with subsections (2) and (3) is not a breach of his duty under a contract for sale

Where the buyer receives notification of a material or indefinite delay or an allocation justified under section 2‑615 , he may by written notification to the seller as to any delivery concerned, and where the prospective deficiency substantially impairs the value of the whole contract under the provisions of this Article relating to breach of installment contracts ( section 2‑612 ), then also as to the whole (a). Terminate and thereby discharge any unexecuted portion of the contract; or (b). Modify the contract by agreeing to take his available quota in substitution.

If after receipt of such notification from the seller the buyer fails so to modify the contract within a reasonable time not exceeding 30 days, the contract lapses with respect to any deliveries affected. (3). The provisions of this section may not be negated by agreement except in so far as the seller has assumed a greater obligation under section 2‑615 .

Expanding on that principle, we hold today that the doctrine of temporary frustration of purpose delineated in the Restatement (Second) of Contracts § 269 is a justification for nonperformance of a contract that is recognized under Minnesota law in certain circumstances. The approaches outlined in Restatement (Second) of Contracts §§ 265, 269 are appropriate frameworks to analyze a claim of permanent or temporary frustration of purpose, respectively.

As set forth in the Restatement, the doctrine of frustration of purpose excuses performance under a contract in certain situations: 8 Where, after a contract is made, a party’s principal purpose is substantially frustrated without his fault by the occurrence of an event the non-occurrence of which was a basic assumption on which the contract was made, his remaining duties to render performance are discharged, unless the language or the circumstances indicate the contrary. Restatement (Second) of Contracts § 265 (Am. L. Inst. 1981). The Restatement approach essentially requires the asserting party to prove three elements: (1) the party’s principal purpose in entering the contract is substantially frustrated; (2) without their fault; (3) by the occurrence of an event, the nonoccurrence of which was a basic assumption on which the contract was made.

A “principal purpose” is one that is “so completely the basis of the contract that, as both parties understand, without it the transaction would make little sense.” Id. at cmt. a. And for a frustration to be “substantial,” it must “be so severe that it is not fairly to be regarded as within the risks that [the asserting party] assumed under the contract.”

Notably, temporary frustration of purpose only suspends the asserting party’s duty, rather than discharging all remaining duties to perform.

Contractual obligations are only discharged if performance would be “materially more burdensome” after the temporary frustration ceases. Id. “Materially more burdensome” performance requires more than inconvenience or increased costs.

For the reasons stated below, we conclude that summary judgment was appropriately granted in favor of City Center. We recognize that the approaches outlined in the Restatement (Second) of Contracts §§ 265, 269 (Am. L. Inst. 1981), are appropriate frameworks to analyze a claim of permanent or temporary frustration of purpose. We have no need to decide, however, whether this permits temporary frustration of purpose to be used as the basis for a breach-of-contract claim and not only as an affirmative defense. Here, even assuming, without deciding, that Fitness was entitled to pursue a claim of temporary frustration of purpose that, if properly supported, would allow it to recover rent paid during the mandatory COVID-19 closure periods, Fitness has not established that its obligation to pay rent owed for the closure periods was discharged, rather than merely suspended. Accordingly, we affirm the decision of the court of appeals, but on different grounds.

For a period of approximately 3.5 months in 2020, however, Fitness was not legally allowed to operate its health club and fitness center due to executive orders mandating closure of certain non-essential businesses to slow the spread of COVID-19.

Fitness’s obligation to pay rent for the closure period was merely delayed by the temporary frustration.

frustration caused by the mandatory closures ended and Fitness was allowed to legally operate its health club and fitness center on the property, all rent payments became due. On these facts, Fitness’s obligation to pay rent for the alleged period of temporary frustration—approximately March to June 2020 and November to December 2020—is not discharged. As a result, Fitness is not entitled to return of the rent payments made to City Center for the mandatory closure periods.

Here, Article XXII of the lease agreement negotiated by Fitness and City Center contains a force majeure clause that specifically contemplates the risk of “restrictive laws” affecting the contract and allocates that risk to the parties accordingly.

when such performance or offer is prevented or delayed by the act of the creditor or by the operation of law, even though there may have been a stipulation that this shall not be an excuse;

when it is prevented or delayed by an irresistible, superhuman cause or by the act of public enemies of this state or of the United States, unless the parties have expressly agreed to the contrary; or

Under S 28-1-1301 (1), MCA, performance is excused by one party when it is prevented or delayed by the act of the creditor.

The want of performance of an obligation or of an offer of performance, in whole or in part, or any delay therein is excused by the following causes, to the extent to which they operate:

when the debtor is induced not to make it by any act of the creditor intended or naturally tending to have that effect, done at or before the time at which such performance or offer may be made, and not rescinded before that time.

Because FUMIC did not even attempt to present the order for payment, the fault for nonperformance (i.e., nonpayment) would lie with FUMIC alone. In that instance, FUMIC could not fault the Smiths for nonpayment

The doctrine of impossibility of performance, often now called impracticability of performance, excuses a promi- sor’s failure to perform a duty under a contract where perform­ ance has been rendered severely impracticable or impossible by unforeseen circumstances

Where, after a contract is made, a party’s performance is made impracticable without his fault by the occurrence of an event the non-occurrence of which was a basic assumption on which the contract was made, his duty to render that performance is discharged, unless the lan- guage or the circumstances indicate the contrary.

There are three general requirements for the application of the doctrine of impracticability of performance: (1) the occurrence (or nonoccurrence) of the event causing the impracticability was unexpected; (2) performance of the duty by the promisor would be extremely difficult and burdensome, if not impossi- ble; and (3) the promisor did not assume the risk of the event’s occurrence (or nonoccurrence).

Performance of a contractual duty is not impracticable merely because it has become inconvenient or more expen- sive.35 Mere difficulty of performance is not enough.

And the party invoking the impracticability defense must show that he or she used reasonable efforts to surmount the obstacles which prevented performance.

Clarkson’s instruction was not warranted, because the difficulty was not unexpected and Clarkson failed to take reasonable steps to overcome the difficulty.

Here, it was not unexpected that a student might be placed on probation or that a clinical site might dismiss or refuse to accept a student. While the specific details of Armstrong’s behavior might have been unexpected, it certainly was not unforeseen to Clarkson that a student might act in an unprofessional manner.

Business necessity is sometimes called impossibility of performance, extreme impracticability, frustration of contract, or implied condition in the promise.

Any LIBOR discontinuance event or LIBOR replacement date, selection or use of a recommended benchmark replacement as a benchmark replacement, or determination, implementation, or performance of benchmark replacement conforming changes that occurs by operation of section 8-3103 shall not: (a) Be deemed to impair or affect the right of any person to receive a payment, or affect the amount or timing of such payment, under any contract, security, or instrument; or (b) Have the effect of (i) discharging or excusing performance under any contract, security, or instrument for any reason, claim, or defense, including, but not limited to, any force majeure or other provision in any contract, security, or instrument, (ii) giving any person the right to unilaterally terminate or suspend performance under any contract, security, or instrument, (iii) constituting a breach of a contract, security, or instrument, or (iv) voiding or nullifying any contract, security, or instrument.

The Restatement (Second) on Contracts, § 261, entitled “Discharge by Supervening Impracticability,” states:

In general, a force majeure provision is a contractual provision that allocates the risk if performance becomes impossible or impracticable as a result of an event or effect that the parties could not have anticipated or controlled.

We conclude that the district court was not clearly erroneous in finding that Aurora did not repudiate the contracts by sending the letter informing Blue Creek that it intended to delay performance by 30 days.

(a) Delay in delivery or non-delivery in whole or in part by a seller who complies with paragraphs (b) and (c) is not a breach of his duty under a contract for sale if performance as agreed has been made impracticable by the occurrence of a contingency the non-occurrence of which was a basic assumption on which the contract was made or by compliance in good faith with any applicable foreign or domestic governmental regulation or order whether or not it later proves to be invalid.

Except so far as a seller may have assumed a greater obligation and subject to the preceding section on substituted performance:

(b) Where the causes mentioned in paragraph (a) affect only a part of the seller's capacity to perform, he must allocate production and deliveries among his customers but may at his option include regular customers not then under contract as well as his own requirements for further manufacture. He may so allocate in any manner which is fair and reasonable. (c) The seller must notify the buyer seasonably that there will be delay or non-delivery and, when allocation is required under paragraph (b), of the estimated quota thus made available for the buyer.

(1) Where without fault of either party the agreed berthing, loading, or unloading facilities fail or an agreed type of carrier becomes unavailable or the agreed manner of delivery otherwise becomes commercially impracticable but a commercially reasonable substitute is available, such substitute performance must be tendered and accepted. (2) If the agreed means or manner of payment fails because of domestic or foreign governmental regulation, the seller may withhold or stop delivery unless the buyer provides a means or manner of payment which is commercially a substantial equivalent. If delivery has already been taken, payment by the means or in the manner provided by the regulation discharges the buyer's obligation unless the regulation is discriminatory, oppressive or predatory.

(1) Where the buyer receives notification of a material or indefinite delay or an allocation justified under the preceding section he may by written notification to the seller as to any delivery concerned, and where the prospective deficiency substantially impairs the value of the whole contract under the provisions of this Chapter relating to breach of installment contracts (12A:2-612), then also as to the whole, (a) terminate and thereby discharge any unexecuted portion of the contract; or (b) modify the contract by agreeing to take his available quota in substitution. (2) If after receipt of such notification from the seller the buyer fails so to modify the contract within a reasonable time not exceeding thirty days the contract lapses with respect to any deliveries affected. (3) The provisions of this section may not be negated by agreement except in so far as the seller has assumed a greater obligation under the preceding section.

For much the same underlying reason, contractual force majeure clauses — or clauses excusing nonperformance due to circumstances beyond the control of the parties — under the common law provide a similarly narrow defense. Ordinarily, only if the force majeure clause specifically includes the event that actually prevents a party’s performance will that party *903 be excused.

The principle of interpretation applicable to such clauses is that the general words are not to be given expansive meaning; they are confined to things of the same kind or nature as the particular matters mentioned

While such defenses have been recognized in the common law, they have been applied narrowly, due in part to judicial recognition that the purpose of contract law is to allocate the risks that might affect performance and that performance should be excused only in extreme circumstances (see, Wallach, The Excuse Defense in the Law of Contracts: Judicial Frustration of the U.C.C. Attempt to Liberalize the Law of Commercial Impracticability, 55 Notre Dame Law 203, 207 [1979]). Impossibility excuses a party’s performance only when the destruction of the subject matter of the contract or the means of performance makes performance objectively impossible. Moreover, the impossibility must be produced by an unanticipated event that could not have been foreseen or guarded against in the contract

Here, of course, the contractual provision does not specifically include plaintiffs inability to procure and maintain insurance. Nor does this inability fall within the catchall "or other similar causes beyond the control of such party.”

The clause reads: "If either party to this Lease shall be delayed or prevented from the performance of any obligation through no fault of their own by reason of labor disputes, inability to procure materials, failure of utility service, restrictive governmental laws or regulations, riots, insurrection, war, adverse weather, Acts of God, or other similar causes beyond the control of such party, the performance of such obligation shall be excused for the period of the delay.”

The lease required Kel Kim to "procure and maintain in full force and effect a public liability insurance policy or policies in a solvent and responsible company or companies * * * of not less than Five Hundred Thousand Dollars * * * to any single person and in the aggregate of not less than One Million Dollars * * * on account of any single accident”.

Special Term granted defendants’ motion for summary judgment, nullified the lease, and directed Kel Kim to vacate the premises. A divided Appellate Division affirmed.

Applying these principles, we conclude that plaintiff’s predicament is not within the embrace of the doctrine of impossibility. Kel Kim’s inability to procure and maintain requisite coverage could have been foreseen and guarded against when it specifically undertook that obligation in the lease, and therefore the obligation cannot be excused on this basis.

We agree with the conclusion reached by the majority below that the events listed in the force majeure clause here are different in kind and nature from Kel Kim’s inability to procure and maintain public liability insurance. The recited events pertain to a party’s ability to conduct day-to-day commercial operations on the premises. While Kel Kim urges that the same may be said of a failure to procure and maintain insurance, such an event is materially different. The requirement that specified amounts of public liability insurance at all times be maintained goes not to frustrated expectations in day-to-day commercial operations on the premises — such as interruptions in the availability of labor, materials and utility services — but to the bargained-for protection of the landlord’s unrelated economic interests where the tenant chooses to continue operating a public roller skating rink on the premises. Chief Judge Wachtler and Judges Simons, Kaye, Alexander, Titone, Hancock, Jr., and Bellacosa concur. Order affirmed, with costs, in a memorandum.

Impossibility of performance is recognized in this jurisdiction as excusing a party from performing under an executory contract if the subject matter of the contract is destroyed without fault of the party seeking to be excused from performance.

Plaintiff’s former wife’s refusal to send the child to defendant school did not destroy the subject matter of the contract; it was still possible for the child to attend the school. The doctrine of impossibility of performance clearly has no bearing on this case.

Except so far as a seller may have assumed a greater obligation and subject to the preceding section [G.S. 25-2-614] on substituted performance: (1) Delay in delivery or nondelivery in whole or in part by a seller who complies with subdivisions (2) and (3) [of this section] is not a breach of his duty under a contract for sale if performance as agreed has been made impracticable by the occurrence of a contingency the nonoccurrence of which was a basic assumption on which the contract was made or by compliance in good faith with any applicable foreign or domestic governmental regulation or order whether or not it later proves to be invalid.

While we agree with Judge Martin’s general discussion of the law concerning frustration of purpose, we hold that the doctrine does not apply to bring about a recission under the facts of this case.

If the frustrating event was reasonably foreseeable, the doctrine of frustration is not a defense. In addition, if the parties have contracted in reference to the allocation of the risk involved in the frustrating event, they may not invoke the doctrine of frustration to escape their obligations.

Therefore, although plaintiff did not receive the full consideration contemplated by the contract, he received consideration sufficient to avoid the application of the doctrine of frustration of purpose. There was no substantial destruction of the value of the contract.

Furthermore, we find the doctrine of frustration of purpose inapplicable on an additional basis. Although the parties could not have been expected to forsee the exact actions of plaintiffs former wife in refusing to send the child to defendant school, the possibility that the child might not attend was foreseeable and appears expressly provided for in the contract. The contract states that tuition is “payable in advance of the first day of school, no portion refundable.” This provision allocates to plaintiff the risk that the child will not attend, and prevents the application of the doctrine of frustration of purpose.

For the reasons stated, we reverse the decision of the Court of Appeals and remand to that court with instructions to remand to the District Court, Guilford County, for a New trial.

(2) Where the causes mentioned in subdivision (1) [of this section] affect only a part of the seller's capacity to perform, he must allocate production and deliveries among his customers but may at his option include regular customers not then under contract as well as his own requirements for further manufacture. He may so allocate in any manner which is fair and reasonable.

(3) The seller must notify the buyer seasonably that there will be delay or nondelivery and, when allocation is required under subdivision (2) [of this section], of the estimated quota thus made available for the buyer.

The Supreme Court of Ohio has not expressly adopted the doctrine of frustration of purpose, and we decline to do so in the present case. Even if the defense were available, however, the appellants did not raise genuine issues of material fact regarding its applicability.

Since the parties expressly allocated the risk of government delay to the appellants, the doctrine of impracticability due to government action is precluded.

whether the issuance of a liquor permit to the appellants was a condition precedent to the Wrobleskys’ enforcement of the lease; (2) whether the appellants’ performance was excused because of frustration of purpose; and (3) whether the appellants’ performance was excused because of impracticability due to government action. {¶3} After a careful review of the record and pertinent law, we find as follows: {¶4} (1) Based on the plain and ordinary meaning of the lease, the parties did not intend the issuance of a liquor permit to be a condition precedent to the appellants’ payment obligations.

Further, the Supreme Court of Ohio has held that “‘[o]rdinarily, when one contracts to render a performance for which a government license or permit is required, it is his duty to get the license or permit so that he can perform. The risk of inability to obtain it is on him; and its refusal by the government is no defense in a suit for breach of his contract.’” Security Sewage Equip. Co. v. McFerren, 14 Ohio St.2d 251, 254, 237 N.E.2d 898 (1968), quoting 6 Corbin on Contracts, Section 1347, at 435.

The Supreme Court of Ohio has held that “‘governmental interference cannot excuse [performance] unless it truly “supervenes” in such a manner as to be beyond the seller’s assumption of risk.’ In order to excuse performance, the contingency must be unforeseen and unusual.” Security Sewage at 254, quoting R.C. 1302.73, Comment 10.

As indicated, the lease required the appellants to obtain the licenses or permits necessary to conduct their business operations. The lease did not excuse the appellants’ payment obligation in the event of “restrictive governmental laws or regulations, * * * or other reason beyond its control.” Based on the plain and ordinary 15 meaning of these provisions, the parties expressly allocated the risk of government delay to the appellants.

The Supreme Court of Ohio has not expressly adopted the doctrine, although the court once acknowledged its existence in a footnote. See In re Adams, 45 Ohio St.3d 219, 220, 543 N.E.2d 797 (1989), fn. 1 (“With respect to the separation agreement, appellee does not challenge the enforceability of the agreement by asserting claims based upon the law of contracts, to wit: frustration of purpose, impossibility of performance or conditions subsequent. Our review of the record discloses no facts to support such assertions”).

Ohio courts that have recognized the doctrine have adopted the standard set forth in the Restatement of the Law. See, e.g., Donald Harris Law Firm at ¶ 16.3 The Restatement describes “discharge by supervening frustration” as follows: {¶58} “Where, after a contract is made, a party’s principal purpose is substantially frustrated without his fault by the occurrence of an event, the non-occurrence of which was a basic assumption on which the contract was made, his remaining duties to render performance are discharged, unless the language or the circumstances indicate the contrary.” Restatement of the Law 2d, Contracts, Section 265, at 334 (1981).

Except so far as a seller may have assumed a greater obligation and subject to the preceding section on substituted performance: (1) Delay in delivery or nondelivery in whole or in part by a seller who complies with subsections (2) and (3) of this section is not a breach of duty under a contract for sale if performance as agreed has been made impracticable by the occurrence of a contingency the nonoccurrence of which was a basic assumption on which the contract was made or by compliance in good faith with any applicable foreign or domestic governmental regulation or order whether or not it later proves to be invalid.

Where the causes mentioned in subsection (1) of this section affect only a part of the seller’s capacity to perform, the seller must allocate production and deliveries among customers but may at the option of the seller include regular customers not then under contract as well as the requirements of the seller for further manufacture. The seller may so allocate in any manner which is fair and reasonable.

The seller must notify the buyer seasonably that there will be delay or nondelivery and, when allocation is required under subsection (2) of this section, of the estimated quota thus made available for the buyer.

Where without fault of either party the agreed berthing, loading, or unloading facilities fail or an agreed type of carrier becomes unavailable or the agreed manner of delivery otherwise becomes commercially impracticable but a commercially reasonable substitute is available, such substitute performance must be tendered and accepted.

If the agreed means or manner of payment fails because of domestic or foreign governmental regulation, the seller may withhold or stop delivery unless the buyer provides a means or manner of payment which is commercially a substantial equivalent. If delivery has already been taken, payment by the means or in the manner provided by the regulation discharges the buyer’s obligation unless the regulation is discriminatory, oppressive or predatory.

Where the buyer receives notification of a material or indefinite delay or an allocation justified under ORS 72.6150 the buyer may by written notification to the seller as to any delivery concerned, and where the prospective deficiency substantially impairs the value of the whole contract under the provisions of ORS 72.6120 relating to breach of installment contracts, then also as to the whole: (a) Terminate and thereby discharge any unexecuted portion of the contract; or (b) Modify the contract by agreeing to take the available quota in substitution.

If after receipt of such notification from the seller the buyer fails so to modify the contract within a reasonable time not exceeding 30 days the contract lapses with respect to any deliveries affected.

The provisions of this section may not be negated by agreement except in so far as the seller has assumed a greater obligation under ORS 72.6150.

According to the common law, a tenant remains liable for the agreed rent of demised premises so long as any part thereof remains in existence capable of being occupied or enjoyed by him, irrespective of injury or destruction by fire or other casualty.

However, there are well-recognized exceptions to this rule. When parties enter into a contract on the assumption that some particular thing necessary to its *153 performance will continue to exist and be available for the purpose, and neither party agrees to be responsible for its continued existence and availability, the contract must be regarded as subject to the implied condition that, if before the time for performance, and without the default of either party, the particular thing ceases to exist or be available for the purpose, the contract shall be dissolved and the parties excused from performing it. This doctrine is known in this country as “supervening impossibility of performance.”

In the light of the authorities hereinabove mentioned, as applied to the situation in the instant case, we find that the destruction of the buildings and service station equipment by the fire in question worked a termination of the original lease, and, of course, the sublease. Upon such termination the landlord was lawfully entitled to possession. Judgment reversed.

Force majeure has been defined as “[a]n event or effect that can be neither anticipated nor controlled; esp., an unexpected event that prevents someone from doing or completing something that he or she had agreed or officially planned to do.” Black’s Law Dictionary 788 (11th ed. 2019).

The main thrust behind that doctrine is to excuse a party from performing under a contract on the occurrence of an intervening or supervening condition that substantially frustrates the main purpose for which the parties entered into the contract in the first place.

To succeed on a theory of frustration based upon the occurrence of a supervening event, a party must show that: “(1) the contract is partially executory, (2) a supervening event occurred after the contract was made, (3) the nonoccurrence of the event was a basic assumption on which the contract was made, (4) the occurrence frustrated the parties’ principal purpose for the contract, (5) the frustration was substantial.” Iannuccillo v. Material Sand & Stone Corp., 713 A.2d 1234, 1238 (R.I. 1998).

In turn, that risk of increased difficulty or expense must be so severe that “the purpose underlying the contract must be totally and unforeseeably destroyed.” City of Warwick v. Boeng Corp., 472 A.2d 1214, 1219 (R.I. 1984)

frustration of purpose—an affirmative defense against a breach of contract claim—is not a theory of liability in an affirmative cause of action.

We agree with the well-established rule which the defendant invokes in this case, namely, that in contracts in which performance depends upon the continued existence of a certain person or thing, a condition is implied that the impossibility of performance arising from the perishing of the person or thing shall excuse the performance. Yerrington v. Greene, 7 R. I. 589. But that rule does not apply in the instant case because the evidence was conflicting

A party’s obligation under a contract “will not be set aside merely because the performance under the contract becomes more difficult or expensive than originally anticipated.”

As comment a. of § 265 makes clear, for the doctrine of frustration of purpose to apply, both parties to the contract must share in the assumption that the particular purpose would not be frustrated.

All of defendant’s exceptions are overruled and the case is remitted to the superior court for the entry of judgment on the verdict.

we affirm in part and vacate in part the judgment of the Superior Court. We affirm the Superior Court’s decision to grant summary judgment in favor of the plaintiff on claims of the breach of promissory note and breach of guaranty, as well as its dismissal of CPA’s counterclaim.

V Conclusion For the reasons set forth in this opinion, we quash the order of the District Court denying the Division’s motion to dismiss, and we remand the case to the District Court with directions that it enter an order dismissing the case.

A party’s performance under a contract is rendered impracticable upon the occurrence of an event or a manifestation of a circumstance the nonoccurrence of which was a basic assumption on which the contract was made. See 2 Restatement (Second) Contracts § 261 (1981); see, e.g., G.L.1956 § 6A-2-615; 18 Samuel Williston, Contracts § 1963 (3d ed.1978)

A party is not excused for impracticability, however, when the event leading to the impracticability was known to the parties prior to contracting.

We hold that CUWCD's failure to perform is not excused by the doctrine of impracticability for several independent reasons. First, CUWCD cannot establish that the event giving rise to the claim of impracticability was unforeseen. Second, CUWCD failed to show that performance was impracticable because it did not even attempt to obtain the required permits. Finally, even had it attempted to do so, CUWCD assumed the risk of failing to obtain the requisite permits.

Additionally, a party may not defend on grounds of impracticability when that party takes on the risk that a supervening event will occur and render performance impracticable or impossible.

Section 7 of the Agreement, entitled "Permits for Construction," states that "CUWCD and/or its contractor shall obtain all construction permits required by all local jurisdictions and any Stream Alteration/ § 404 permits required for the reconstruction of the TCC diversion." (Emphasis added). CUWCD thus affirmatively contracted to obtain all necessary permits and assumed the risk that such permits may be difficult, or even impossible, to obtain. See Kilgore Pavement Maint., LLC v. W. Jordan City, 2011 UT App 165, ¶¶ 7-8 , 257 P.3d 460 (holding that where a party agreed that it "shall furnish and assume full responsibility for all materials," it implicitly assumed the risk that the materials may have been more expensive or more difficult to obtain than originally anticipated (emphasis added)). While CUWCD explicitly undertook the obligation of obtaining the necessary permits, its performance under the Agreement was not contingent on its ability to do so.

The doctrine of impracticability exeuses a party's performance "if an unforeseen event occurs after formation of the contract and without fault of the obligated party, which event makes performance of the obligation impossible or highly impracticable." W. Props. v. S. Utah Aviation, Inc., 776 P.2d 656, 658 (Utah Ct.App.1989) (footnotes omitted)

Additionally, there is no dispute that CUWCD has not yet applied for or otherwise sought to obtain the permits necessary to undertake the replacement of the TCC Diversion. While CUWCD's replacement of the TCC Diversion may be "inconsistent with evolving LPRDS objectives," without a good faith attempt to obtain the necessary permits, CUWCD cannot establish that performance is impracticable. Thus, even assuming that CUWCD did not know of the LPRDS Project prior to execution of the Agreement, had CUWCD sought to obtain permits and been denied, it might have a colorable claim for impracticability. - But here, where CUWCD has not even attempted to obtain the necessary permits, it cannot reasonably make such a claim.

The defense of impossibility of performance is an established principle of contract law. In Virginia, it is “well settled that where impossibility is due . . . to the fortuitous destruction or change in the character of something to which the contract related, or which by the terms of the contract was made a necessary means of performance, the promisor will be excused, unless he either expressly agreed in the contract to assume the risk of performance, whether possible or not, or the impossibility was due to his fault.”

Over Gordonsville's objection, the trial court gave the jury Instruction No. 10, which stated: Gordonsville Energy is responsible to Virginia Power under the parties' contract for the design and construction of Gordonsville Energy's electric generating facility, including the steam turbine generator, its rotor and the rotor's component parts that failed in September, 1995. Although Gordonsville Energy relied on General Electric Company to design and construct the rotor, Gordonsville Energy is responsible to Virginia Power for General Electric's performance of those activities just as if Gordonsville Energy had performed them itself.

In a later section of the Contract, § 14.1, the parties agreed that an outage would be excused if it was "due solely to circumstances beyond [Gordonsville's] reasonable control . . . including . . . damage to or breakdown of power generation materials and equipment that is not caused by normal wear and tear."

Thus, under the Contract, Gordonsville remained responsible for the contractual obligations it subcontracted to General Electric and was excused from performance only if an outage also was "beyond 12 the reasonable control" of any subcontractors hired to perform Gordonsville's duties set forth in § 8.2.

The jury returned its verdict in favor of Virginia Power, finding that "the [September 1995] outage was not a force majeure event."

The County’s removal of the cap on FAR presented such a change relative to the performance of the FAR formula. Thus, the circuit court was also correct in sustaining Capital One’s impossibility defense, as asserted in its Plea in Bar and Motion for Summary Judgment, to WG Land’s claims that Capital One breached the FAR formula.

It cannot be said that Capital One was at “fault” for the legislative action taken by the County’s governing board. “Fault” in the context of the 23 impossibility doctrine implies the violation of a tort or contract duty, which WG Land has failed to either allege or establish with regard to Capital One’s lobbying efforts.

In granting Instruction No. 10, the trial court ruled that the Contract did not excuse Gordonsville's failure to perform under the Contract if the failure was caused by the negligence of a subcontractor retained by Gordonsville to perform functions for which Gordonsville was responsible. Under familiar principles of contract interpretation, we reach the same conclusion and hold that the trial court did not err in granting Instruction No. 10.

For these reasons, we will affirm the trial court's judgment in favor of Virginia Power on Counts I and V. We will also reverse the trial court's judgment on Count II and enter final judgment in favor of Gordonsville on that Count. Affirmed in part, reversed in part, and final judgment.

our cases define the elements of this defense as follows: “(1) the party’s principal purposes in making the contract is frustrated; (2) without that party’s fault; (3) by the occurrence of an event, the non-occurrence of which was a basic assumption on which the contract was made.”

The doctrine of frustration is “given a narrow construction” and “applied sparingly.” 17A AM. JUR. 2D Contracts § 641 (2016). This is so because it renders null the explicit terms of the contract and is counter to the strong impulse in the law to enforce contracts as written.

“The doctrine does not apply where the risk of the event that has supervened to cause the alleged 9 No. 2017AP1505 frustration was reasonably foreseeable and could and should have been anticipated by the parties and provision made for it in the agreement.”

The party asserting the defense has the burden to prove frustration of purpose.

The Restatement affirms that frustration is not substantial merely because “the transaction has become less profitable for the affected party or even that he will sustain a loss.” Id. An example from the Restatement is helpful and especially pertinent here: A leases a gasoline station to B. A change in traffic regulations so reduces B’s business that he is unable to operate the station except at a substantial loss. B refuses to make further payments of rent. If B can still operate the station, even though at such a loss, his principal purpose of operating a gasoline station is not substantially frustrated. B’s duty to pay rent is not discharged, and B is liable to A for breach of contract. The result would be the same if substantial loss were caused instead by a government regulation rationing gasoline or a termination of the franchise under which B obtained gasoline.

Moreover, the frustrating event must strike at the foundation of the contract—a basic assumption on which the contract was made such that the party’s performance, due to this unexpected circumstance, would be “virtually worthless” and “meaningless.”

As our supreme court stated in Chicago, Milwaukee, “if the parties have contracted with reference [to the frustrating event] or have contemplated the risks arising from it, they may not invoke the doctrine of frustration.” Chicago, Milwaukee, 82 Wis. 2d at 527.

In short, the Defendants have not met their burden to prove that the principal purpose of the FSA was frustrated due to U.S. Oil’s demand for alterations to the bathrooms, nor that this demand was contrary to a basic assumption underlying the FSA.

We conclude AP Marketing is not excused from performance of the FSA under the frustration of purpose doctrine. The circuit court erroneously dismissed the claim on this ground. We remand the case to the circuit court with instructions to reinstate Bulk’s claim that AP Marketing breached the FSA. Because the circuit court did not determine whether AP Marketing breached the FSA, that issue—along with any other issues of contractual interpretation and performance, including the stipulated damages provision—remains to be adjudicated. By the Court.—Judgment reversed and cause remanded with directions.