Mishara Constr. Co. v. Transit-Mixed Concrete Corp.
365 Mass. 122, 310 N.E.2d 363 (Mass. 1974)

  • Mishara was building a housing project. They entered a contract with Transit for concrete, with deliveries to be made at times an in amounts required by Mishara.
    • That is a requirements contract.
  • There was a labor strike at the site and Transit refused to cross the picket lines, so no concrete was delivered.
  • Mishara covered by getting someone else to deliver concrete at a higher price and sued Transit for nonperformance.
  • The Trial Court found for Transit. Mishara appealed.
  • The Appellate Court affirmed.
    • The Appellate Court found that in this case, it was commercially impractical for Transit to perform.
      • Basically, the Court found that if Transit defied the strikers it would significantly hurt their business, so they were allowed to break the contract.
  • UCC §2-615 talks about commercial impracticability.
  • Compare this decision to Maple Farms Inc. v. City School Dist. (352 N.Y.S.2d 784 (N.Y.Sup. 1974))) that was decided the same year New York. In that case, the Court held that Maple Farms was still liable to deliver milk at the agreed price even though the company would take a heavy loss on the deal.
    • Perhaps the difference was that Maple Farms just made a dumb deal, so it was their own fault, while Transit wasn’t responsible for the strike?
    • Or maybe the courts didn’t want to set an anti-union precedent?