What is the Impossibility Defense Doctrine of Impossibility Contract Law Criminal Defenses

In the law, defenses can ultimately relieve a defendant of liability for his or her actions or in actions (omissions).  One such defense has been termed the “impossibility defense.”  However, the impossibility defense comes into play in different ways depending on the particular area of law and the type of case in which it is being used.  

Generally speaking, an action or occurrence is “impossible” if it is not able to exist, occur, or be completed.  Thus, impossibility defenses, regardless of the context in which they are used, are premised on the notion that the defendant is not liable for his or her actions or omissions by virtue of the fact that the claims brought against him simply could not exist, occur, or have been completed by that defendant.

In the context of Contract Law, impossibility can be used as a defense by a party against whom a cause of action based on breach of contract has been brought.  The impossibility-of-performance doctrine, as it is termed in the field of Contracts, is premised on the notion that a party should be released from a contract, and therefore free from liability under its terms, if circumstances beyond that party’s control have rendered the performance of the contract impossible.  A defendant can assert the impossibility defense in various ways, including, but not limited to,  the following situations:

1.  Impossibility of performance.  A defendant is not liable for breach of contract if the subject of the contract has been destroyed or is no longer available.  For example, if A is a seller who contracts with B, a buyer, for the sale of an item and A does not deliver that item because it has been destroyed in a fire, A is not liable for breach of contract.  

2.  Legal impossibility.  If A and B enter into an contract with terms specifying that A is to sell B all of the apples that B produces across state lines for one year, and two days after the agreement is entered into state X, where B lives, passes a law making it illegal for any individual residing in state X to sell apples, then A could not bring suit against B for breach of contract by virtue of impossibility due to the illegality of the nature of the contract following the law’s passing. B cannot be liable for breach because a law is now in place to prevent the performance of the contract, and thus B would be acting in violation of the law if she were to fully perform under the terms of the agreement.

3.  Death or illness.  If one of the parties to a contract, particularly a contract for the performance of services, becomes ill or dies, the defendant or his estate is not liable for breach of that contract.  For instance, if a club owner, A, contracts with B, a musician, to play a set at his club, but B dies in a car accident, A generally cannot collect damages on a theory of breach of contract.

In contract law, while there may be a variety of situations in which a defendant can escape civil liability by virtue of impossibility, it is important to note that simply because unexpected difficulties arise in the performance of a contract, or because expenses not initially contemplated when parties entered into the contract have occurred, these situations do not excuse a defendant’s liability for breach.  Inconvenience does not fall within the scope of the doctrine of impossibility in contract law.

In the context of criminal law, the impossibility defense is somewhat more complex.  Criminal prosecutors are required to prove each element of the crime for which a defendant is charged beyond a reasonable doubt.  There are two types of impossibility defenses in criminal law: factual impossibility and legal impossibility.  

Factual impossibility occurs when a fact or circumstance exists which prevents the commission of a crime. In other words, the crime was impossible because it physically could not be accomplished.  If a defendant can bring forth evidence to prove a fact or circumstance that shows that it was impossible for him to commit the crime charged, he can be acquitted of the criminal charges against him.  

For example, if a defendant has been charged with murder and is able to provide factual evidence that he was elsewhere at the time the murder occurred, he could be acquitted of the charges.  The rationale behind an acquittal in these circumstances is that if a fact exists that shows that the commission of the crime for which the defendant has been charged was impossible because it could not be physically accomplished, the defendant should not be found guilty.

Factual impossibility can be a defense to many criminal charges; however, it is important to note that for a criminal charge of attempt, factual impossibility is NOT a defense.  This caveat is premised on the idea that the attempt to commit some act, in itself, is the crime, rather than the accomplishment of the act itself.

Legal impossibility, on the other hand, serves as a defense when the defendant’s intention in acting or not acting is not illegal.  Thus, if a defendant is charged with attempt and the actus reus (or voluntary act) of the crime has been satisfied, the prosecution must still prove that the defendant also possessed the mens rea (state of mind) required under the terms of the relevant criminal statute to have committed the act.  If the defendant can produce evidence showing that it was legally impossible for him to commit attempt because he did not have the requisite state of mind to commit that crime, then an acquittal of the charges is likely to follow. Unlike factual impossibility, legal impossibility IS a defense to charges of attempt.