of a supervening force majeure-type event, rendering performance impossible or (at least) an extraordinary ‘impediment to performance’ (opfyldelseshindring), what American lawyers refer to as ‘impracticability.’ 967967. Farnsworth, id., § 9.6.
In the Danish glossary of ‘foreign words,’ 968968. Brüel & Nielsen, Fremmedordbog (11th ed). ‘impraktikabel’ (as a Dane would spell that transplant) is misleadingly defined as ‘impossible to do’ (ugørlig). Black’s Law Dictionary provides a functional and more accurate definition of impracticability: ‘A fact or circumstance that excuses a party from performing an act, especially a contractual duty, because (though possible) it would cause extreme and unreasonable difficulty.’
Excuses like these were the focus of my senior-year (5-L) thesis in Copenhagen in 1980, 969969. Joseph Lookofsky, ‘CISG: The Basis of Liability,’ Justitia (Copenhagen 1981). where I concluded that the relevant American and Danish statutes, although very differently worded, 970970. § 24 of the Danish Sale of Goods Act (Købeloven) translates as follows: ‘A seller who incurs a generic obligation [genusforpligtelse] is liable in damages for delay or non-delivery, unless the contract otherwise provides or the possibility of performance must be considered precluded by circumstances not of such a nature that the seller should have taken them into account at the time of the conclusion of the contract, such as the accidental destruction of all goods of the kind or lot concerned, war, prohibition of import, or the like.’ § 2-615 of the American Uniform Commercial Code provides (in relevant part): ‘Delay in delivery or non-delivery in whole or in part by a seller is not a breach of his duty under a contract of sale if performance as agreed has been made impracticable by the occurrence of a contingency the non-occurrence of which was a basic assumption on which the contract was made.’ convey an essentially similar message based on similar underlying criteria. 971971. Both rules depend on variants of the ‘impossibility’ and ‘foreseeability’ tests central to traditional theories of liability for delay and non-delivery. In § 2-615, ‘impracticable’ covers both ‘objective impossibility’ and impracticability in the narrower sense of what Danish law refers to as ‘economic force majeure.’ In both systems, a key inquiry is the foreseeable nature of the contingencies concerned. Thus, in my first attempt at ‘academic’ analysis, I focused on similarities, this in reaction to a prominent English scholar who, the year before, had argued that differences dominated, at least in his Common (contra-Civil) law perspective. 972972. In 1979 Barry Nicholas described the CISG ‘exemptions’ rule as reflecting ‘superficial harmony which merely mutes a deeper discord,’ the discord between the Civil (fault) and Common (no-fault) approaches to liability for breach of contract. See Barry Nicholas, ‘Force majeure and Frustration’, 27 American Journal of Comparative Law, pp. 231 ff. (1979).