Part 1 and Part 2 of this article series focused on the
suspension of contractual performance due to events of force
majeure. Under common law, there are 2 additional doctrines that
can stop performance under a contract and can be used to terminate
the contract: the doctrine of “frustration” and the
doctrine of “impracticability”. These are separate
doctrines from force majeure. If a contract contains a force
majeure provision, the force majeure provision (not the doctrine of
frustration/impracticability) would be invoked. But if a party
fails to make a claim under force majeure, they can attempt to make
a claim under the defenses of frustration / impracticability.
In the US, force majeure, frustration and impracticability are
related, but legally distinct concepts (Drummond Coal Sales, Inc.
vs. Norfolk Southern Railway Company, Civil Action No. 7:16cv00489
(2018 WL 4008993) (U.S. District Court, Western District of
Virginia). Frustration and impracticability excuse
