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Types: Mistake of fact (clerical) easier to argue as a genuine mistake than mistake of judgment. Negligence: Many courts hold that a unilateral mistake must be non-neg, but there’s tendency to relax this where proof of mistake is strong & effect of enforcement is devastatingoSome courts: can’t be gross negligence. oSome courts: can be neg as long as good faith (lacking bad faith)oRestatement: no requirement of non-negligent, only good faith and fair dealingUnilateral mistake: Could be used to trump Promissory Estoppel in Drennan style cases!oWil-Fred v Metro (P bid on D’s project, miscalculated by $150,000, sued to get back $100,000 deposit, would have lost $2-3 million in credit if it lost it, court allowed recission because P exercisedreasonable care)Changed Circumstances (Impossibility, Impracticability, Frustration of Purpose)Involve changes in circumstances that occur b/t the making of the K and the time set forth for performanceThese are all low probability moves bc we don’t want pple having escape hatches to K they have entered into.All three assume non-performance party is not at fault for change in circumstances.Order of arguments 1) impossibility 2) Impracticability 3) Frustration (no one likes a frustrated K)UCC mentions Impracticability and impossibility in §615- but not frustration!Classic/Strict Contractual Liability– Nonperformance actionable when D fails to perform. Any failure to perform a contractual obligation gives aggrieved party cause of action – non-performance is strictModern- certain circumstances we let you off the hook (it seems odd to tell people they have to perform even though it is really impossible)How the parties talked about the contract is crucial!How much detail was used when parties negotiated the contract?What is purpose of contract?Impossibility – When person or thing “necessary for performance” of the K dies, is incapacitated, destroyed, or damaged, duty of performance is excused. Requires a showing of literal, objective impossibility (no one could do it) not subj (I couldn’t do it)A party pleading impossibility as a defense must demonstrate that it took virtually every action within its powers to perform its duties under the KRST §261: Even if a party contracts to render a performance that depends on some act by a third party, he’s not ordinarily discharged because of a failure by that party because this is also a risk that’s commonly understood to be on the obligorEx: Jon Vought’s car bursts into flames – excused; generic Nissan Sentra – not excused bc can get anotheroUnique good thing is destroyed – contract is impossible (ex: want Rembrandt to paint me a painting but he dies – impossible)Impracticability