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WPI 302.10 Excuse of Performance—Frustration of Purpose

6A WAPRAC WPI 302.10Washington Practice Series TMWashington Pattern Jury Instructions--Civil

6A Wash. Prac., Wash. Pattern Jury Instr. Civ. WPI 302.10 (7th ed.)

Washington Practice Series TM

Washington Pattern Jury Instructions--Civil

April 2022 Update

Washington State Supreme Court Committee on Jury Instructions

Part XIII. Contracts

Chapter 302. Contracts—Performance and Breach

WPI 302.10 Excuse of Performance—Frustration of Purpose

A party's remaining duties of performance under a contract are excused if the party's principal purpose is substantially frustrated, without that party's fault, by the occurrence of an unforeseen event when the non-occurrence of such an event was a basic assumption on which the contract was made.

In this case,(name of party)is relieved of the duty to(set forth performance claimed to be excused)if(name of party)proves, by a preponderance of the evidence, that [his] [her] [its] principal purpose in entering into the contract was substantially frustrated, without(name of party)'s fault, by the occurrence of an unforeseen event and that the lack or absence of such occurrence was a basic assumption, by [both] [all] contracting parties, on which the contract was made.

NOTE ON USE

Use this instruction after an initial determination by the court that the evidence and circumstances would warrant a finding of frustration of purpose under Washington law.

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

COMMENT

Although application of the doctrine of frustration of purpose is a question of law, see Felt v. McCarthy, 130 Wn.2d 203, 207, 922 P.2d 90 (1996), the jury may still need to resolve related factual disputes. For further discussion, see the Comment to WPI 302.09 (Excuse of Performance—Impossibility or Impracticability).

Washington courts have adopted Restatement (Second) of Contracts: Discharge by Supervening Frustration § 265 (1981). Felt, 130 Wn.2d at 207; Wash. State Hop Producers, Inc. Liquidation Trust v. Goschie Farms, Inc., 112 Wn.2d 694, 773 P.2d 70 (1989). Restatement (Second) of Contracts § 265 (1981) provides that:

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 instruction uses the term excused, rather than discharged, because it would be more familiar to jurors.

The doctrine requires more than the unforeseeability of the frustrating event; the assumption that a desired objective was possible must “be so completely the basis of the contract that, as both parties understand, without it the transaction would make little sense.” Felt, 78 Wn.App. at 367 (emphasis added) (citing Weyerhaeuser Real Est. Co. v. Stoneway Concrete, Inc., 96 Wn.2d 558, 637 P.2d 647 (1981)), affirmed, 130 Wn.2d 203, 208–09, 922 P.2d 90 (1996). The doctrine does not apply if the contract discloses an allocation of the risk to one party or the other. Scott v. Petett, 63 Wn.App. 50, 60, 816 P.2d 1229 (1991).

According to the Restatement (Second) of Contracts section 266(2), the principle also applies to facts existing at the time of contracting, of which the party had no reason to know:

Where, at the time a contract is made, a party's principal purpose is substantially frustrated without his fault by a fact of which he has no reason to know and the non-existence of which is a basic assumption on which the contract is made, no duty of that party to render performance arises, unless the language or circumstances indicate the contrary.

Restatement (Second) of Contracts § 266(2) (1981). Compare WPI 301.08 (Enforceability—Mutual Mistake) and WPI 301.09 (Enforceability—Unilateral Mistake).

[Current as of April 2021.]

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