ABSTRACT :: When should a civilian seller of goods who delays delivery or cancels altogether under a wartime contract be able to claim excuse under U.C.C. Article 2? The unprecedented extent of the U.S. military’s use of contractors abroad calls for a rethinking of U.C.C. impracticability, as private parties face wartime risks once encountered solely by the government. The traditional approach typically denies the seller the right to excuse the failure of delivery in instances where the wartime risk might be categorized as foreseeable or is expressly or impliedly allocated to the seller. This analysis forces a dilemma upon the seller facing threats of serious injury or death. At the same time, the civilian seller typically does not enjoy the same privileges regarding use of force that government provisioners once exercised. This Article proposes a new paradigm-one that would hold sellers to deliver goods in most circumstances, but would make excuse available to sellers through an analysis of functions that are inherently governmental. This analysis grants excuse where the risks associated with wartime contingencies requiring a military response are inherently governmental and, therefore, remain with the government. The rationale balances the interests of civilians performing wartime contracts and the military’s need for goods and control of the wartime theater that would warrant excusing contractors during wartime from performance in cases of extreme hazard to a contractor’s employees.
November 2014, Vol. 66, No. 6
Lily Kahng, The Taxation of Intellectual Capital