Brooklyn Law Review


Uri Benoliel


The impossibility doctrine – under which a contracting party has no duty to perform the agreement if performance thereof is rendered impossible – is a basic building block of U.S. contract law. The prevailing law-and-economics analysis of this doctrine suggests that when contract performance becomes impossible, courts should assign the contractual risk of non-performance to the superior risk bearer, i.e., to the party that can bear said risk at least cost. This article empirically tests, for the first time, the economic theory of the impossibility doctrine. It first hypothesizes that most sophisticated parties to commercial contracts are unlikely to adopt the economic superior risk bearer model given its high implementation costs and its uncertain results. It then aims to expose the actual preference of real-world contract parties for the economic model. By examining 1,926 commercial contracts that were disclosed to the Securities and Exchange Commission (SEC), this article finds that most parties prefer not to adopt the economic model. This finding casts considerable doubt over the efficacy of this model for the parties.