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Related to impossibility: Logical impossibility


A legal excuse or defense to an action for the breach of a contract; less frequently, a defense to a criminal charge of an attempted crime, such as attempted Robbery or murder.

Historically, a person who entered a contract was bound to perform according to his or her promised duties, regardless of whether it became impossible to do so. Thus, early U.S. courts did not recognize the defense of impossibility of performance. Courts noted that if the parties to a contract had desired to take into account any events that may develop after they reached an agreement, then they should have accounted for such contingencies in the contract.

As contract law developed over the twentieth century—and in response to increasing commercial activities—courts began to recognize impossibility as a valid defense to an action for breach of a contract. This defense did not normally apply if one party found it unexpectedly difficult or expensive to perform according to the contract; rather, it applied only when the basis or subject matter of the contract was destroyed or no longer existed. In addition, the defense of impossibility became available only if objective impossibility existed. Objective impossibility occurred when the contractual obligation could not actually be performed. Objective impossibility is often referred to by the statement "The thing cannot be done." For example, if a musician promised to play a concert at a specific concert hall but the concert hall subsequently burned down, it would be impossible to perform according to the contractual agreement and the musician would be excused from performing at that particular venue. Subjective impossibility exists when only one of the parties to a contract subjectively believes that she or he cannot complete the required performance. For example, if a musician believed that he had not practiced sufficiently to perform a successful concert, this belief would not excuse the musician from performing the concert. The statement "I cannot do it" frequently refers to the state of mind present in a case involving subjective impossibility.

Modern U.S. law uses the term impracticability synonymously with the term impossibility, primarily because some things may not be absolutely impossible to perform but are nevertheless impracticable to complete. Thus, the general rule is that a thing may be impossible to perform when it would not be practicable to perform. A contractual obligation is impracticable "when it can only be done at an excessive and unreasonable cost" (Transatlantic Financing Corp. v. United States, 363 F.2d 312 [D.C. Cir. 1966]).

When a party raises the defense of impracticability, courts generally determine three things: first, whether something unexpected occurred after the parties entered the contract; second, whether the parties had assumed that this thing would not occur; and third, that the unexpected occurrence made performance of the contract impracticable. Some widely recognized occurrences that would normally provide a defense of impracticability are the death or illness of one of the necessary parties, the unfore-seeable destruction of the subject matter of the contract (perhaps by an "act of God"), or a supervening illegality.Impossibility has been used as a defense to charges of attempted crimes. Historically, courts recognized that a party could not be convicted of criminal attempt if the actual crime was legally impossible to accomplish. For example, if a person was accused of attempting to receive stolen property but the property was not actually stolen, the defense of legal impossibility could arise. Legal impossibility is distinguished from factual impossibility, where facts unknown to the person attempting to commit a crime render the crime factually impossible to complete. For example, if a pickpocket attempts to steal a wallet but no wallet is present, factual impossibility may exist. Courts generally have recognized legal impossibility as a defense to a criminal attempt, but not factual impossibility. They reasoned that since a person attempting to commit a crime had formed the required intent to commit the crime, it was irrelevant that the crime was factually impossible to complete.

Impossibility as a defense to a criminal attempt has largely been rejected by modern U.S. statutes and courts. The Model Penal Code—which many states have adopted since its introduction in 1962—expressly rejects impossibility as a defense to the charge of criminal attempt (§ 5.01 [1995]).

Further readings

Bello, Christopher. 1985. "Construction and Application of State Statute Governing Impossibility of Consummation as Defense to Prosecution for Attempt to Commit Crime." American Law Review 41.

Berliant, Marcus, and Paul Rothstein. 2003. "Possibility, Impossibility, and History in the Origins of the Marriage Tax." National Tax Journal 56 (June).

"Modern Status of the Rules Regarding Impossibility of Performance as Defense in Action for Breach of Contract." 1962. American Law Reports 84.


n. when an act cannot be performed due to nature, physical impediments, or unforeseen events. It can be a legitimate basis to rescind (mutually cancel) a contract. (See: contract)


noun difficulty, failure, futility, impossibleness, impracticability, impracticality, inconceivability, infeasibility, inoperability, insuperableness, insurmountability, lack of possibility, lack of potentiality, unachievability, unfeasibility, unattainable, unavailability, unobtainableness, unperformability, unpracticability, unthinkability, unworkability
Associated concepts: frustration of purpose, impossibility of performance, legal impossibility, rescission, supervening impossibility
Foreign phrases: Lex non intendit aliquid impossibile.The law does not intend anything impossible. Lex non cogit ad impossibilia. The law does not require the perrormance of the impossible. Impotentia excusat legem. The impossibility of performing a legal duty excuses from the performance. A l’impossible nul n’est tenu. No one is bound to do what is impossible. Argumentum ab impossibili valet in lege. The argument from impossibility is of great force in law. Impossibilium nulla obligatio est. One cannot be obliged to perform impossible tasks.

IMPOSSIBILITY. The character of that which. cannot be done agreeably to the accustomed order of nature.
     2. It is a maxim that no one is bound to perform an impossibility. A l'impossible nul n'est tenu. 1 Swift's Dig. 93; 6 Toull. n. 121, 481.
     3. As to impossible conditions in contracts, see Bac. Ab. Conditions, M; Co. Litt. 206; Roll. Ab. 420; 6 Toull. n. 486, 686; Dig. 2, 14, 39; Id. 44, 7, 31; Id. 50, 17, 185; Id. 45, 1, 69. On the subject of impossible conditions in wills, vide 1 Rop. Leg. 505; Swinb. pt. 4, s. 6; 6 Toull. 614. Vide, generally, Dane's Ab. Index, h.t.; Clef des Lois Rom. par Fieffe Lacroix, h.t.; Com. Dig. Conditions, D 1 & 2; Vin. Ab. Conditions, C a, D a, E a.

References in classic literature ?
The chief steward, a very stupid but cunning man who saw perfectly through the naive and intelligent count and played with him as with a toy, seeing the effect these prearranged receptions had on Pierre, pressed him still harder with proofs of the impossibility and above all the uselessness of freeing the serfs, who were quite happy as it was.
Everywhere the feeling seemed to be that the prosecution of his schemes was an impossibility.
She would have liked to have rung off and gone away, but it seemed a sheer impossibility for her to move
Further, and keenest of all, she read into the incident the impossibility of his living down his working-class origin.
There is no impossibility in all this; that there is a difficulty, we acknowledge ourselves.
And thus it is as usual to assert the impossibility of losing what is already actually lost.
Thy foot itself hath effaced the path behind thee, and over it standeth written: Impossibility.
He had only to recall his brother's wife, to remember how that sweet, delightful Varya sought, at every convenient opportunity, to remind him that she remembered his generosity and appreciated it, to grasp the impossibility of taking back his gift.
There was something revolting in the thought that, in circumstances which would have made sleep an impossibility for most men, he had slept like a log.
It's dear of you, Bill, but you're promising an impossibility.
Apparently he did not, and I refrained from pointing out the impossibility to him because, since he did not venture to say that "the girl" did not live, I felt no concern at his indignation.
BAGHDAD / NINA/ The parliamentary committee on security and defense announced re-the project of the National Guard Law to the government because of the impossibility to pass it in Parliament during the current and the next sessions.