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AMI 2439 Defense—Impossibility of Performance

Arkansas Supreme Court Committee On Jury Instructions-Civil

Ark. Model Jury Instr., Civil AMI 2439
Arkansas Model Jury Instructions-Civil
December 2023 Update
Arkansas Supreme Court Committee On Jury Instructions-Civil
Chapter 24. Contracts
Defenses
AMI 2439 Defense—Impossibility of Performance
[Defendant] contends that [his][her][its] performance of the contract was impossible and has the burden of proving each of two essential propositions:
First, that [defendant] diligently attempted to perform the contract; and
Second, that performance became impossible as a result of (describe the legally recognized event on which the defendant relies, e.g., Act of God, change of law, death of essential party).
[If you find from the evidence in this case that both of these propositions have been proved, then your verdict should be for [defendant]].
NOTE ON USE
Do not use the instruction when the contract involves a sale of goods and is governed by Ark. Code Ann. §§ 4-2-614, 4-2-615 or 4-2-616.
Do not use the bracketed paragraph when the case is submitted on interrogatories.
COMMENT
In Christy v. Pilkinton, 224 Ark. 407, 273 S.W.2d 533 (1954), the Arkansas Supreme Court distinguished between objective impossibility (i.e., the thing cannot be done) and subjective impossibility (i.e., I cannot do it). Subjective impossibility does not discharge a party's contractual duty. The distinction between objective and subjective impossibility is not incorporated into this instruction. Instead, where the trial court determines that the alleged impossibility is solely subjective, it should not submit the issue to the jury.
The party alleging impossibility of performance must demonstrate that virtually every effort to perform the duty under the contract was taken, and that performance cannot be accomplished by any means. Resolving the issue requires examining the conduct of the party asserting the defense to determine the presence or absence of fault in failing to perform. Frigillana v. Frigillana, 266 Ark. 296, 584 S.W.2d 30 (1979).
Where the contract cannot be performed due to action by a governmental agency, impossibility of performance is a valid defense. Smith v. Decatur School District, 2011 Ark. App. 126.
At least in the arbitration context, the Arkansas Supreme Court has followed the majority approach in recognizing a distinction between provisions that involve “ancillary logistical concerns,” the impossibility of performance of which does not render the contract unenforceable, and “integral terms,” the impossibility of performance of which may do so. In Courtyard Gardens Health & Rehab., LLC v. Arnold, 2016 Ark. 62,12-17, and GGNSC Holdings, LLC v. Lamb by & through Williams, 2016 Ark. 101, 16-18, the court held that the agreements' specification of the National Arbitration Forum Code, which provides for arbitration only by the NAF itself, involved an “ancillary logistical concern,” such that NAF's unavailability did not render the arbitration agreements impossible to perform.
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