By Steve Rizer
What are the keys for avoiding problems that may bring into play the legal doctrines of impossibility, impracticability, and frustration of purpose -- an area of law that, as Dorsey & Whitney Partner Jocelyn Knoll recently put it, “those in the construction industry should hope to never encounter?”
Such problems can be avoided “through careful contracting and consulting with experienced legal counsel throughout the project,” Knoll said in summing up for ConstructionPro Week a presentation she delivered on the topic at the American Bar Association’s Forum on the Construction Industry Annual Meeting last month in New Orleans. Also addressing professionals attending the presentation was John Clappison, general counsel of Colasanti Group Inc.
The legal doctrines of impossibility, impracticability, and frustration of purpose are the theories by which a contracting party’s performance might be excused in certain circumstances, Knoll explained. “Usually, those circumstances are unforeseen events that prevent a party from rendering its contractually agreed-to performance. Most often, the contract itself will dictate the outcome if a party encounters significant, unexpected obstacles, but these legal theories come into play when the contract does not.”
During the presentation, Knoll and Clappison focused on several emerging issues -- including ones involving “wild weather,” international conflict disruption, and an increased use of performance specifications for construction projects -- that can allow the doctrines to become a factor in projects.
Knoll recommended that parties “agree in writing as to the effect of important potential disruptions. For example, they should decide how unusual the weather has to be before the contractor will be entitled to delay. They should know how they will respond if an essential building component becomes scarce due to international conflict. They should be certain that performance specifications are identified as such and agree as to who bears responsibility if the specifications prove flawed or impossible to perform.”
The ConstructionPro Network member version of this article includes additional coverage of the meeting.