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Impossibility is a defense from liability under criminal law and an excuse for non-performance under contract law

Under contract law, a party can raise an impossibility defense when an unforeseen event occurs after the contract is made which makes performance impossible.

  • For example, if a person agrees to clean the local theater for a year but the local theater later burns down, the person is excused from performing the rest of the contract because the contract was predicated on the local theater’s existence. 

Under criminal law, impossibility is a defense in some jurisdictions which can remove liability for certain attempted crimes. Impossibility is typically split into two separate categories; factual and legal.

  • Factual impossibility, or the inability to complete a crime due to a non-existent factual circumstance, does not function as a defense.
  • Legal impossibility, or the belief that one’s actions are a crime when they actually are not, does function as a defense and can protect the defendant from attempted liability. 

[Last updated in January of 2023 by the Wex Definitions Team]