Adapting U.C.C. 2-615 Excuse for Civilian-Military Contractors in Wartime
48 Pages Posted: 14 Apr 2008 Last revised: 26 Feb 2013
This Article addresses the following question: when should a seller of goods who delays delivery or cancels altogether under a wartime contract be able to claim excuse under U.C.C. Article 2? Failure of delivery or delay due to dangers created by insurgents in the Middle East has become common for wartime contractors, and the ground situation for contractors remains unsafe. After presenting representative factual situations involving two contractors, the Article describes the traditional approach to the excuse question during wartime. This approach typically denies the seller the right to excuse the failure of delivery in instances where the wartime risk might be categorized as foreseeable or is expressly or impliedly allocated to the seller. Although this approach works well with a seller faced with a pure monetary loss, it may deprive the wartime seller whose employees face serious injury or death of a needed contractual out, leaving the seller in breach. An alternative framework is needed to address when a wartime seller faced with exceptionally harsh wartime conditions can excuse delivery.
After describing and critiquing government regulations and the traditional approach to impracticability doctrine, the Article provides a careful contractual analysis of the relationship between the wartime seller and the government buyer. It then proposes a rethinking of the approach to the problem of excusing wartime deliveries - one that would hold sellers to deliver goods in most circumstances, but would make excuse available to sellers through an analysis of functions that are inherently governmental. Under this analysis, excuse is permitted where the risk associated with wartime contingencies requiring a military response are inherently governmental and, therefore, remain with the Government. The Article concludes with a discussion of the specific balancing of interests of civilians performing wartime contracts and the military's need for goods and control of the wartime theater that would warrant excusing contractors during wartime from performance in cases of extreme hazard to a contractor's employees.
Keywords: Iraq, government, contracting, contractors, wartime, U.C.C., sales, contract, national security, impracticability, excuse, 2-615, commercial, foreseeable, risk, KBR, seller, contingency, inherently governmental function
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