Brief Fact Summary. The Plaintiff, Eastern Air Lines, Inc. (Plaintiff), sued the Defendant, Gulf Oil Corporation (Defendant) for breach of contract. Among other issues, the Defendant defended the action by alleging that the contract was void as commercially impracticable.
Synopsis of Rule of Law. A mere showing of unprofitability, without more, will not excuse performance under a contract.
If a contingency is foreseeable, it and its consequences are taken outside the scope of U.C.C. 2-615, because the party disadvantaged by fruition of the contingency might have protected himself in his contract.View Full Point of Law
Issue. Was the Defendant’s performance under the contract commercially impracticable?
Held. No. In order for performance to be commercially impracticable under the Uniform Commercial Code (UCC), the unforeseen cost increase that excuses performance “must be more than merely onerous or expensive. It must be positively unjust to hold the parties bound.” In other words, unprofitability alone will not excuse performance. Here, the Defendant’s argument that the price escalation indicator no longer reflects the intent of the parties is rejected, as the unambiguous terms of the contract clearly evidence an intent to be bound by the specified entries in Platts. Further, the Defendant’s commercial impracticability due to the increase in market price of foreign crude oil and certain domestic crude oils argument also has no merit. Quite simply, the Defendant has not proved the dramatically increased “costs” of production it is alleging. The type of hardship, beyond mere lack of profitability, required to prove commercial impracticability was not established. Therefore, the Defen
dant’s impossibility defense fails.
Discussion. Commercial impracticability is defined as economic hardship substantially beyond mere unprofitability.