Some superheroes like Batman and Iron Man are independently wealthy. Some, like Wolverine, seem content with a fairly rough and tumble lifestyle. But what about your everyday, working superheroes, the ones that have to take jobs on the side to make ends meet? Some, like Spiderman, may work a normal job held by their alter egos. Sometimes, though, superheroes take jobs that explicitly require the use of their powers. For example, in one alternate continuity, Colossus worked as a construction worker, a job for which his super strength was no doubt very useful.
But these are comic book superheroes, which we know are prone to losing their powers for a variety of reasons. What happens if a superpowered individual contracts around his or her powers and then loses them? Or what if Metropolis is attacked by a supervillain and our hero is called away to deal with it? The answer depends on whether the promised work is now impossible to perform.
I. The Rules for Impossibility
Impossibility (also called impracticability) is a defense to a breach of contract. The Restatement (Second) of Contracts is a scholarly work intended to clarify and render consistent the rules by which courts interpret and apply contracts. It is not law as such, but as the United States is still (mostly) a common law system, it has proven highly influential in clarifying and regularizing doctrines of contract law. For the most part it is a good summary of the law. Section 261 of the Restatement provides a good definition of “impossibility”:
Where, after a contract is made, a party’s performance is made impracticable without his fault by the occurrence of an event the non-occurrence of which was a basic assumption on which the contract was made, his duty to render that performance is discharged, unless the language or the circumstances indicate the contrary.
Perhaps more importantly in this case is § 262 which further explains:
If the existence of a particular person is necessary for the performance of a duty, his death or such incapacity as makes performance impracticable is an event the non-occurrence of which was a basic assumption on which the contract was made.
Thus, by default, the incapacity of the superhero qualifies as rendering performance impracticable. And since superheroes rarely lose their powers forever, we must also consider § 269:
Impracticability of performance or frustration of purpose that is only temporary suspends the obligor’s duty to perform while the impracticability or frustration exists but does not discharge his duty or prevent it from arising unless his performance after the cessation of the impracticability or frustration would be materially more burdensome than had there been no impracticability or frustration.
There’s also § 264:
If the performance of a duty is made impracticable by having to comply with a domestic or foreign governmental regulation or order, that regulation or order is an event the non-occurrence of which was a basic assumption on which the contract was made.
So if a contract cannot be performed because for some reason the government says it can’t, performance is excused. But we may get even more mileage out of § 265:
Where, after a contract is made, a party’s principal purpose is substantially frustrated without his fault by the occurrence of an event the non-occurrence of which was a basic assumption on which the contract was made, his remaining duties to render performance are discharged, unless the language or the circumstances indicate the contrary.
II. Depowering and Impossibility
Under § 269, temporary impossibility is not a perpetual excuse. If the superhero’s powers return while it is still possible to perform (e.g., the deadline isn’t up yet), then the duty to perform returns, so long as doing so wouldn’t be materially more burdensome than if the hero had never lost his or her powers. For example, if Superman contracts to put several satellites into orbit within a week and is depowered for a few minutes because of exposure to green kryptonite, then that likely doesn’t excuse nonperformance: he could still manage the job easily enough. But if Superman were depowered right up until a few hours before the deadline was up, then that would probably be materially more burdensome, and Superman would be excused.
But there are several other important things to note here. First, this is only a default rule; a contract may have specific language requiring a party to pay for a breach even if performance becomes impossible. Second, just how necessary does the particular superhero need to be for his or her incapacity to count? This one is a bit more complicated.
As the commentary to the Restatement says, “if the performance remains practicable and it is merely beyond the party’s capacity to render it, he is ordinarily not discharged.” “The difference has been described as that between ‘the thing cannot be done’ and ‘I cannot do it.'”
Thus, if Superman again contracts to put several large satellites into orbit in a single day but then loses his powers through no fault of his own, then he is likely excused (I’m assuming no other superhero is available or capable of performing such a feat). However, if Superman instead contracted to put a single satellite into orbit within a month, then he likely would not be excused because the satellite could probably be launched by a lesser superhero or by a private company, and Superman would still be liable for the breach of contract.
III. Supervillains and Frustration of Purpose.
But what if a superhero is called away to deal with a threat of some kind, e.g. Colossus is working his construction job and Magneto makes an appearance two states away? Or while launching his satellites, Superman discovers an asteroid on collision course with the Earth? Clearly, something has to be done. Here we look more to §§ 264-65.
Section 264 is usually used in contexts were one party simply cannot get regulatory approval for a project, or if the property in question is condemned, i.e. where the government, for reasons of its own, acts to make performance of the contract a violation of the law. Unless the parties specifically agreed that the risk of this happening fell on a particular party, e.g. one party specifically promises that they can get regulatory approval, performance is excused. Applying this section to a superhero called away by the government to deal with a supervillain or other potential disaster is a rather novel application, but it would seem to fit for certain superhero characters, especially those with longstanding contacts with government agencies, e.g. the Avengers, the JLA, etc.
Even if the government doesn’t specifically make a request, § 265 is probably applicable. This rule is intended to deal with situations where something happens that neither party had counted on which makes performance impractical. Dealing with supervillains would seem to count as an “event the non-occurrence of which was a basic assumption on which the contract was made,” so failing to perform because one was occupied saving the world is probably justified under event the non-occurrence of which was a basic assumption on which the contract was made 265.
Note that in both cases the analysis in section II still applies. Just because a superhero has to save the world does not automatically exclude them from performing their contracts. Rather, saving the world must directly interfere with performance in such a way as to make it impossible. If Superman has to orbit a satellite on a specific day and Lex Luthor attacks Metropolis right then, then Superman will probably be able to go deal with that without fear of being sued for breach. But if Superman has to orbit a satellite sometime this month, it gets to be the 30th and he hasn’t done it yet, and then Lex Luthor attacks… well, I’m sorry Superman, but you had plenty of time to get this done. That’s on you.
In all of these cases, it seems likely that there would be some kind of “Depowerment and/or Supervillain” clause. Contracts are not written in a vacuum; they represent the accumulated experience and wisdom not only of the parties but of the parties’ counsel, who are presumably trained to identify potential problems and advise their clients accordingly. Most of the terms we see in contracts today have nothing to do with the actual substance of the contract but are there to remove ambiguities which have cropped up at some point in the past. For example, just about every contract has a clause stating that the contract does not create a partnership between the parties. Why is that there? Because at some point, a clever lawyer argued that it did, and now people are careful to say that it does not. In a world where superheros and supervillains exist, it would seem likely that the lawyers in that world would advise their clients to include appropriate clauses to deal with the possibility of a super-related disaster, particularly when contracting directly with a superhero.
The practical upshot for superheroes seems to be: if you’re going to contract around your powers and you can’t get specific language excusing you if you are depowered or called away to save the world, then go big. Make yourself indispensable. Otherwise you might find yourself on the hook for a satellite launch.