Babafemi Fatade (Stetson University – Stetson University College of Law) has posted Mental Contingencies: Can Supervening Mental Illness Excuse Contractual Performance Obligations? (Kansas Law Review, forthcoming) on SSRN. Here is the abstract:
When a party has a mental illness at the time of contracting, contract law provides a clear framework for allowing that party to get out of their contract. But what if a party develops a mental illness only after contract formation? Could that party be excused from performing under the contract on the ground that a post-formation mental illness makes performance too difficult? Only a handful of reported case law touch on this question. That is surprising given the prevalence of mental illness in our society. This Article analyzes whether the supervening impracticability doctrine, a modern successor to the doctrine of impossibility of performance, provides an adequate framework for excusing a party with a post-formation mental illness from performing their contractual obligations. Applying the doctrine in the mental illness context raises several important questions: What does it take for a post-formation mental illness to excuse contract performance? Does it matter whether the mental illness is temporary, episodic, or permanent? Can a party be at fault for the development or effects of a post-formation mental illness, thereby precluding discharge under the doctrine? Would applying the supervening impracticability doctrine in the mental illness context lead to abuse by inviting parties to invoke the doctrine as a convenient way to avoid performing contractual obligations? This Article addresses those questions by examining the doctrine’s requirements and relevant case law.
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