Will this force-majeure / impossibility / frustration-of-purpose clause excuse late or non-performance in Idaho?
It depends on what the contract is for. For a SALE OF GOODS Idaho does codify an excuse, and it is a standard rather than a list of events: Idaho Code § 28-2-615, "[e]xcept so far as a seller may have assumed a greater obligation and subject to the preceding section on substituted performance," makes delay or nondelivery no breach of the seller's duty where "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." The section that precedes it goes first in order: under § 28-2-614(1), where the agreed manner of delivery "otherwise becomes commercially impracticable but a commercially reasonable substitute is available, such substitute performance must be tendered and accepted." Outside the sales article there is no general excuse-of-performance statute: Idaho's contracts chapter runs §§ 29-101 to 29-116 and carries none, so for a services, construction or real-property contract the doctrine rests on Idaho common law. Rasmussen v. Martin states the controlling common-law standard: "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."
The trap
The objective/subjective line is the whole doctrine and is easy to blur in practice (Rasmussen itself denied the defense where the claimed frustration was that the parties' relationship "has so deteriorated that they 'are unable to trust each other'"), personal to the parties, not an objective impediment to performance: "the record does not contain a showing of objective frustration," and "[t]he district court did not find that Rasmussen was untrustworthy." A party whose own circumstances, or feelings about the counterparty, make performance unwelcome does not get the defense merely by invoking "frustration." Outside a goods contract there is no Idaho statute on point, so a drafter cannot point to a fixed statutory list of qualifying events, and the doctrine's content is defined by case-by-case application of the objective/subjective distinction, which makes a well-drafted contractual force-majeure clause listing specific qualifying events comparatively more important in Idaho than in a state with a statutory backstop, precisely because there is no statutory default to fall back on. Inside a goods contract the opposite trap applies. § 28-2-615 is a default the contract can displace, since it yields "so far as a seller may have assumed a greater obligation", and the protection is conditional on the seller's own conduct: it must "allocate production and deliveries among his customers" where only part of its capacity is affected, and must "notify the buyer seasonably that there will be delay or nondelivery", so a seller that simply stops shipping and tells nobody loses the excuse. The common-law half of this rule rests on a single 1983 Court of Appeals decision, which sustained the district court and affirmed. Across every published Idaho opinion the phrase "objective frustration" appears in that decision and nowhere else, and of the six opinions that mention frustration of purpose none is a later Idaho Supreme Court decision applying the objective/subjective test to a commercial contract: one barred the defence by collateral estoppel from a federal bankruptcy ruling, one excluded it as raised too late, and the only later citation of the test is a Court of Appeals parenthetical in a bail-bond case.
7 authorities
- statuteIdaho Code § 28-2-615enactment date not established
The words that state the rule
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.
- statuteIdaho Code § 28-2-615enactment date not established
The words that state the rule
(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.
- statuteIdaho Code § 28-2-614enactment date not established
The words that state the rule
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.
The words that state the rule
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.
The words that state the rule
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.”
The words that state the rule
In this case, the record does not contain a showing of objective frustration. The district court did not find that Rasmussen was untrustworthy.
The words that state the rule
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.
“Defective” means that reading found something to correct. What you are reading is the rule as it stands after that reading.