WPI 302.09 Excuse of Performance—Impossibility or Impracticability

Use this instruction after an initial determination by the court that the evidence and circumstances would warrant a finding of impossibility/impracticability under Washington law. When the doctrine of frustration of purpose is applicable, use WPI 303.10 (Excuse of Performance—Frustration of Purpose) instead.

Adapt the last paragraph to inform the jury of the consequences of a finding of impossibility or impracticability, under the circumstances of the case.

Use this instruction with WPI 21.01 (Meaning of Burden of Proof—Preponderance of the Evidence).

Role of the jury. The determination of whether to excuse performance because of impossibility/impracticability (WPI 302.09) or frustration (WPI 302.10) has been treated as an issue of law for the court, rather than a factual matter to be determined by a jury. Wash. State Hop Producers, Inc., Liquidation Trust v. Goschie Farms, Inc., 112 Wn.2d 694, 773 P.2d 70 (1989); see also Restatement (Second) of Contracts, Introductory Note to Chapter 11, Impracticability of Performance and Frustration of Purpose (1981) (“The question is generally considered to be one of law rather than fact, for the court rather than the jury.”).

If the facts are undisputed, and the only issue is whether justice requires that performance be excused, then no instruction to the jury is warranted. However, when there is a factual dispute regarding one or more elements of the test for either doctrine (e.g., whether an event was “fortuitous” or “unexpected”), then it may be appropriate to submit the case to the jury with the relevant instruction, but only after the initial determination that a factual dispute warrants such an instruction.

Impossibility and impracticability. Impossibility of performance excuses a party's performance. The doctrine encompasses both “strict impossibility and impracticability due to extreme and unreasonable difficulty, expense, injury or loss. [However, t]he mere fact that a contract's performance becomes more difficult or expensive than originally anticipated, does not justify setting it aside.” Thornton v. Interstate Secs. Co., 35 Wn.App. 19, 29, 666 P.2d 370 (1983); see also Hornback v. Wentworth, 132 Wn.App. 504, 132 P.3d 778 (2006) (change in county regulations prevented promised subdivision of property).

The event that renders performance impossible must be “fortuitous and unavoidable on the part of the promisor.” Metro. Park Dist. of Tacoma v. Griffith, 106 Wn.2d 425, 439, 723 P.2d 1093 (1986). It is conceivable that an event might have been anticipated by the promisee, but so long as that event was fortuitous, and unexpected and unavoidable by the promisor, the doctrine of impossibility may apply. However, if the promisee claims to have anticipated the event, that would be relevant to whether or not the event was unexpected by the promisor.

When the existence of a specific thing is “necessary for the performance of a contract,” the fortuitous destruction of that thing excuses the performance of the promisor unless it has “clearly assumed the risk of its continuous existence.” Griffith, 106 Wn.2d at 439. Cf. Restatement (Second) of Contracts, Introductory Note to Chapter 11, Impracticability of Performance and Frustration of Purpose (1981) (court determines whether non-occurrence of the event was “basic assumption” of the parties, taking all circumstances into account, and making judgment as to which party assumed the risk of its occurrence).

It is not necessary that the event be totally unforeseeable, if it was unexpected and unavoidable. Thornton, 35 Wn.App. 19.

Fortuitous event. A fortuitous event is one that occurs by chance or accident. Black's Law Dictionary (11th ed. 2019).

For further discussion of the issues underlying this instruction, see DeWolf, Allen, & Caruso, 25 Washington Practice, Contract Law and Practice § 10:16 et seq. (3d ed.).