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Copyright (c) 2001 University of Wisconsin Law School
Wisconsin Law Review

CONTRACTS SYMPOSIUM: CONTRACT EXCUSE DOCTRINE AND RETROSPECTIVE LEGISLATION: THE WINSTAR CASE

2001

2001 Wis. L. Rev. 795

Author

Richard E. Speidel*

Excerpt



I. Introduction
 
Law, whether by legislation, regulation, or judicial decision, changes over time. Sometimes the change is totally prospective and has no effect on contracts entered before the legislation's effective date. In other cases, the change has some retrospective effect, ranging from ex post invalidation from the date of the contract, to impairment of future performance under an existing contract. In these latter cases, the new law, even if prospective in application, may have explicit or implicit retrospective effect in that future contract performance is made illegal, prevented, hindered, or made more expensive by the subsequent government act. 1

In contracts between private parties, the promisee 2 may claim the retrospective legislation was unconstitutional because it denied due process of law under the Fourteenth Amendment of the United States Constitution or constituted a taking of property without just compensation under the Fifth Amendment. Regardless of the status of the promisee's constitutional claim against the government, the promisor 3 may claim discharge from the contract under private contract law because the subsequent government act has made performance as agreed impracticable. If the promisee's constitutional claim is denied and the promisor's claimed excuse is granted, the promisee, who had contract rights under state law, is left without a constitutional claim against the government and cannot sue the promisor for breach of contract. Its relief is limited to compensation for work done under the contract or to restitution for benefits conferred on the discharged party. If discharge ...
 
 
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