ABSTRACT
Historically, once a party had signed a contract, generally even the impossibility of performance could not excuse the contracting party from being liable for damages if it failed to perform its obligations under the contract. U.S. courts generally refuse to excuse performance based on grounds of unexpected expense or unanticipated delay. Parties to contracts are free to negotiate contractual provisions regarding circumstances that will excuse performance. If the parties have chosen not to include an excuse from performance in a particular circumstance, a court will usually require a party to perform its contract. After all, the party in distress was free not to enter into the contractual obligation in the first place. Thus, U.S. courts have tended to construe contractual provisions relating to excuse from performance narrowly unless it is unequivocally clear that the intent of the parties was to excuse performance as a result of the impediment involved.
