IMPOSSIBILITY

impossibility. 1. The fact or condition of not being able to occur, exist, or be done. 2. A fact or circumstance that cannot occur, exist, or be done. 3.Contracts. A fact or circumstance that excuses performance because (1) the subject or means of performance has deteriorated, has been destroyed, or is no longer available, (2) the method of delivery or payment has failed, (3) a law now prevents performance, or (4) death or illness prevents performance. • Increased or unexpected difficulty and expense do not usu. qualify as an impossibility and thus do not excuse performance. — Also termed impossibility of performance. [Cases: Contracts 309. C.J.S. Contracts §§ 520–522, 524.] 4. The doctrine by which such a fact or circumstance excuses contractual performance. Cf. FRUSTRATION(2); IMPRACTICABILITY. [Cases: Contracts 309. C.J.S. Contracts §§ 520–522, 524.] 5.Criminal law. A fact or circumstance preventing the commission of a crime. [Cases: Criminal Law 31, 44. C.J.S. Criminal Law §§ 15, 46–49, 88, 93–94, 114–123.]

factual impossibility.Impossibility due to the fact that the illegal act cannot physically be accomplished, such as trying to pick an empty pocket. • Factual impossibility is not a defense to the crime of attempt. — Also termed physical impossibility; impossibility of fact.

legal impossibility. 1. Impossibility due to the fact that what the defendant intended to do is not illegal even though the defendant might have believed that he or she was committing a crime. • A legal impossibility might occur, for example, if a person goes hunting while erroneously believing that it is not hunting season. This type of legal impossibility is a defense to the crimes of attempt, conspiracy, and solicitation. — Also termed impossibility of law; true legal impossibility. 2. Impossibility due to the fact that an element required for an attempt has not been satisfied. • This type of legal impossibility might occur, for example, if a person fires an unloaded gun at another when the crime of attempt requires that the gun be loaded. This is a defense to the crime of attempt.

objective impossibility.Impossibility due to the nature of the performance and not to the

inability of the individual promisor. subjective impossibility.Impossibility due wholly to the inability of the individual promisor

and not to the nature of the performance.

supervening impossibility.Impossibility arising after the formation of a contract but before the time when the promisor’s performance is due, and arising because of facts that the promisor had no reason to anticipate and did not contribute to the occurrence of.

“Contracting parties constantly take a voluntary risk, and it would make the whole basis of

contract insecure if they were allowed to plead every and any kind of supervening impossibility. Moreover, a man need not undertake this kind of risk unless he chooses. He can deliberately exclude it by stipulations in his contract, if the other party is willing to contract with him on those terms.” 2 Stephen’s Commentaries on the Laws of England 82–83 (L. Crispin Warmington ed., 21st ed. 1950).

[Blacks Law 8th]