Impossibility

Now known as supervening impracticality, this is where, after a contract is made, a party cannot perform his responsibilities under the contract, through no fault of his own. His performance must be excused by an event which the parties could not have seen coming when they signed the contract. For example, in the unpublished case of Soldwedel v. Soldwedel, 2021 WL 2583945 (Ariz. App. 2021), the parties executed a prenuptial agreement under which Husband would pay Wife spousal maintenance; the agreement further stated that he would claim the payments as a loss on his taxes and Wife would report them as income. That reflected the federal tax laws at the time. But when they divorced, the laws had changed, and now a person paying spousal maintenance could no longer write off the payments. He challenged this provision under impossibility and lost because the possibility of the tax code changing was a foreseeable event.