Impossibility, Impracticability, Frustration of Purpose

Listing of the “discharge triplets”. Bear in mind that they are generally exclusive of each other, but students tend to cluster them on the exams. Moreover, not every rule and analysis below is correct, this is just to give you an idea of how often these issues are raised and the approaches that candidates use to answer.

FYLSX

October 2013

Q1

Answer A: Impossibility, Impracticability, Frustration of Purpose

Answer B: Impracticability

June 2014

Q4

Answer A: Impossibility, Impracticability, Frustration of Purpose

October 2014

Q4

Answer B: Impossibility, Impracticability, Frustration of Purpose

October 2015

Q4

Answer A: Impracticability

Answer B: Impossibility, Impracticability

October 2016

Q2

Answer B: Impossibility, Impracticability

Q4

Answer A: Impossibility, Impracticability, Frustration of Purpose

Answer B: Impossibility, Impracticability, Frustration of Purpose

June 2017

Q1

Answer A: Frustration of Purpose

October 2017

Q3

Answer A: Impossibility, Impracticability

Answer B: Impossibility, Impracticability, Frustration of Purpose

June 2018

Q1

Answer A: Impossibility, Impracticability

Answer B: Impossibility, Impracticability, Frustration of Purpose

Q3

Answer B: Impossibility, Impracticability, Frustration of Purpose

October 2018

Q1

Answer A: Impossibility, Impracticability, Frustration of Purpose

Answer B: Impossibility, Impracticability, Frustration of Purpose

June 2019

Q4

Answer A: Frustration of Purpose

CBX

July 2013

Q4

Answer A: Impossibility, Impracticability

Answer B: Impossibility, Frustration of Purpose

July 2016

Q3

Answer A: Impossibility, Impracticability, Frustration of Purpose

Answer B: Impossibility, Impracticability

July 2018

Q1

Answer A: Impracticability

Answer B: Impossibility, Impracticability

Additional Predominant Factor Test resources

From The ABCs of the UCC (Revised) Article 2: Sales.

Excerpt from: SCOPE OF ARTICLE 2

This ambiguity concerning the meaning of “transactions in goods” leads to a problem under current law in another respect: whether Article 2 should be applied in a so-called “mixed” transaction. Contracts often involve both the sale of goods and the service or installation of the goods sold. When the transaction is mixed, the courts apply one of two tests: the predominate purpose test (majority view) or the gravamen test (minority view).

Under the predominate purpose test, the court determines whether the predominate purpose of the transaction is to sell the goods or to provide the service. If the predominate purpose is to sell the goods, Article 2 applies. If the predominate purpose is to provide the service, Article 2 does not apply. To determine whether the predominate purpose is to provide the goods or the service, courts generally look at the predominate component in the transaction. To determine what is the predominate component, courts examine many factors including the terminology of the contract, the objective of the parties in entering the contract, the ratio of the price of the goods to the whole price of the contract, the nature of the business of the supplier, and the intrinsic value of the goods without the service.

In contrast, under the gravamen test, the court looks at the basis of the complaint rather than the overall nature of the transaction. If the plaintiff is complaining about the goods component, Article 2 applies. If the plaintiff is complaining about the service component,Article 2 is inapplicable.


Paper discussing the problems posed by software transactions

Installation Failure: How the Predominant Purpose Test Has Perpetuated Software’s Uncertain Legal Status Under the Uniform Commercial Code