Impossibility, Impracticability, and Frustration—Professor Goldberg Constructs an Imaginary Article, Attributes it to Me, and then Criticizes it

Last year I published an article, “Impossibility, Impracticability, and Frustration,” in this Journal (Eisenberg 2009). Professor Victor Goldberg, a leading fi gure in the law-and-economics of contracts, has now published a counter-article, “ Excuse Doctrine: The Eisenberg Uncertainty Principle,” also in this Journal (Goldberg 2010). Although Goldberg’s article purports to be a criticism of mine, in fact most of his points are directed to an Imaginary Article he has constructed out of thin air, consisting of statements I did not make and positions I did not imply. Accordingly, a major reason for this response is to set the record straight by comparing what Goldberg says that I said and implied with what I actually said and implied. 2 In addition, those portions of Goldberg’s article that addressed what I did write are for the most part either based on a fallacious rhetorical device, simply incorrect, or both. Therefore, a second reason for this response is to show where and why Goldberg’s criticisms go astray. Finally, in one instance Goldberg has identifi ed an erroneous sentence in “Impossibility, Impracticability, and Frustration,” and I also write to acknowledge that error. 1 . THE SHARED-ASSUMPTIO N TEST One thesis of “Impossibility, Impracticability, and Frustration” was that judicial relief from a contract normally should be granted if (1) the contracting parties shared a tacit assumption that the occurrence or nonoccurrence of some circumstance during the life of the contract was certain rather than problematic; (2) the assumption was incorrect; and (3) the incorrectness of the assumption would have provided a basis for judicial relief if the assumption had been explicit rather than tacit. I called this the shared-assumption test.