It’s Not Impossible, Only Frustrating

At the dawn of the 21st century, in June, 2001 to be more precise, I presented a paper at St. John’s University School of Law titled “Mission Possible” (later published at 74 St. John’s Univ. L. Rev. 691). I laid out my plan to analyze and rationalize the various tools by which American courts have discharged a party’s contractual liability on account of subsequent events. Nearly eight years later I’ll take the next step at the annual meeting of the Indian Society of International Law on February 3.

Even before leaving for India I had considered going to the meeting of the ISIL but didn’t have the time to write a paper. Nonetheless, conference director Manoj Kumar contacted me here and kindly offered to let me present first and write later. LaDonna and I will be taking the overnight Mandore Express on February 2, which should deliver us to Delhi early the next morning. I’ll give my talk that afternoon and the conference wraps up the following evening with a dinner and cultural program (or programme, over here). Our daughter arrives on the 5th and then it’s a day trip to Agra to see the Taj on the 6th before coming back to Jodhpur. A whirlwind of activity.

The Indian Contract Act of 1872 (largely drafted by Fitzjames Stephen, drawing from many sources included the aborted New York Field Code), in particular, section 56, has largely fixed the development of Indian contract law with respect to doctrines like impossibility, impracticability, and frustration of purpose. Perhaps even more than the conservative English courts, Indian jurisprudence expresses an unwillingness to release parties from the rigors of a strict duty to perform or pay damages. Contemporary sources of law such as UCC 2-615, art. 79 of the UN Convention on the International Sale of Goods (law in the U.S. but not India), and the UNIDROIT Principles of International Commercial Contracts arts. 6.2.1 through 6.2.3 evidence—at least formally—some relaxation of the traditional rules of both the common and civil law systems. Word on the street also has it that arbitrators of international commercial disputes are open to contextual construals of contracts and more than most courts demonstrate flexible reallocations of risks arising from subsequent events. Both perspectives have their academic partisans so I hope to use India as something of a laboratory to test whether emphasizing strict liability drives parties from one legal system to another or from litigation to arbitration.

Of course, even a presentation requires preparation. All of which is to say that you won’t be reading much from me over the next week or so. Namaste.