Lillian Liberty

1. Analyze and explain what possible defense Marcella could claim to Dillon’s allegation of breach of contract.

Marcella’s possible defense can be the impossible defense which concludes that destruction of the subject matter of the contract, the contract cannot be performed if the subject matter no longer exists. Marcella had the portrait ready prior to the due date of February 14, which she had completed her performance. Due to a fire that wiped out everything (Act of God) on February 13th, it may excuse her for non-performance of the portrait on February 14th. She was not able to precure a studio space at such notice to try and redo the complete portrait.

Impracticability is very similar to  impossibility except the level of difficulty of performing does not have to rise to the level of impossibility in order to have an excuse not to perform.

Based on the facts of the case, Marcella would likely be successful with either defense, but I would raise the defense of  impossibility. Given the fact that 1) the fire in her studio on the morning that she was contract to delivered the complete painting was unexpected, 2) the fire prevented the painting from being delivered because it was damaged in the fire, 3) the risk of fire was unexpected and could not be allocated for, 4) they would not have entered in the the contract without allocating the risk if they would have known it was a risk. 

Additionally, Marcella made every effort to fulfill the contract by completing the painting on time, it was set to be delivered on the contract terms, and it would be impossible to redo the painting and deliver it on time even if she used someone else’s studio.

2. Analyze and explain whether the possible defense would be different if Marcella’s studio fire occurred on February 7, rather than on February 13

 No, Marcella would not be able to use the impossible defense if the fire happened on February 7 with a due date of February 13. I would recommend using the defense of impracticability. As cited above, Impracticability is very similar to  impossibility except the level of difficulty of performing does not have to rise to the level of impossibility in order to have an excuse not to perform. She has 6 days to accomplish the portrait. Marcella would have the chance to find another studio space to redo the portrait and ensure delivery by February 13.

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