Even had Kuhn claimed
inability to pay, such a claim is not a recognized basis for the defense
of impossibility.
"The continuation of existing market conditions and of the
financial situation of the parties are ordinarily not such [basic] assumptions,
so that mere market shifts or financial inability do not usually effect
discharge under the rule stated in this Section." R.2d Contracts
261, Comment b.
However, a party finding itself unable to pay
an amount required by a contract, or unable to pay damages for breach of
contract, might discharge or alter its obligation to pay under provisions
of federal bankruptcy law. Consideration of the impact of a potential bankruptcy
filing is thus an important part of the lawyer's service either to a client
who owes money under a contract or as damages for breach of contract or
to a client who is owed such money. You may study federal bankruptcy
law in an upper division law school course.