Strategies and Tactics for the MBE II (Bar Review Series) by Steven L. Emanuel

Author:Steven L. Emanuel [Emanuel, Steven L.]
Language: eng
Format: azw3, epub
Publisher: Wolters Kluwer
Published: 2020-04-30T00:00:00+00:00

II.IMPRACTICABILITY

A. Modern view of impracticability

1 .Allocation of risk by parties

a. Implicit allocation

i. Risk of technological breakthrough

Question 68

A computer company contracted in writing with a bank to sell and deliver to the bank a mainframe computer using a new type of magnetic memory, then under development but not perfected by the computer company, at a price substantially lower than that of a similar computer using current technology. The contract’s delivery term was “F.O.B. the bank, on or before July 31.”

After making the contract with the bank, the computer company discovered that the new technology it intended to use was unreliable and that no computer manufacturer could yet build a reliable computer using that technology. The company thereupon notified the bank that it was impossible for the company or anyone else to build the contracted-for computer “in the present state of the art.” If the bank sues the computer company for failure to perform its contract, the court will probably decide the case in favor of

(A)the computer company, because its performance of the contract was objectively impossible.

(B)the computer company, because a contract to build a machine using technology under development imposes only a duty on the builder to use its best efforts to achieve the result contracted for.

(C)the bank, because the law of impossibility does not apply to merchants under the applicable law.

(D)the bank, because the computer company assumed the risk, in the given circumstances, that the projected new technology would not work reliably.

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