2023 Wisconsin Statutes & Annotations
Chapter 402 - Uniform commercial code — sales.
402.615 - Excuse by failure of presupposed conditions.

402.615 Excuse by failure of presupposed conditions. Except so far as a seller may have assumed a greater obligation and subject to s. 402.614 on substituted performance:

(1) Delay in delivery or nondelivery in whole or in part by a seller who complies with subs. (2) and (3) is not a breach of the seller's duty under a contract for sale if performance as agreed has been made impracticable by the occurrence of a contingency the nonoccurrence of which was a basic assumption on which the contract was made or by compliance in good faith with any applicable foreign or domestic governmental regulation or order whether or not it later proves to be invalid.

(2) Where the causes mentioned in sub. (1) affect only a part of the seller's capacity to perform, the seller must allocate production and deliveries among the seller's customers but may at the seller's option include regular customers not then under contract as well as the seller's own requirements for further manufacture. The seller may so allocate in any manner which is fair and reasonable.

(3) The seller must notify the buyer seasonably that there will be delay or nondelivery and, when allocation is required under sub. (2), of the estimated quota thus made available for the buyer.

History: 1991 a. 316.

An impracticability defense requires a defendant to show three things: 1) a contingency occurred; 2) the contingency made performance impracticable; and 3) the nonoccurrence of that contingency was a basic assumption upon which the contract was made. The third element requires the defendant to show that its inability to perform is because of circumstances beyond the defendant's control and not within the defendant's ability to foresee. The question is whether the contingency should have been foreseen, not whether the defendant actually knew the problem was coming. Oregon Potato Co. v. Kerry Inc., 575 F. Supp. 3d 1064 (2021).

The impracticability defense is generally reserved for events caused by a third party or acts of nature, for example, war, embargo, local crop failure, loss of a supplier, fires, sickness, and death. Oregon Potato Co. v. Kerry Inc., 575 F. Supp. 3d 1064 (2021).

The Legal Domino Effect: COVID-19 & Contracts. Gegios & Duroni. Wis. Law. May 2020.