JD - check out UCC 2-209 (1) , in that situation a breach would not be in her best interest, and the offeror would recover heavy damages. However, in this situation, assuming good faith, offeree could modify the contract for "impracticability" if:
- Contract excutory, not executed (which it is)
- Modifications are fair and equitable...
- in view of the circumstances not anticipated when contract was formed.
This modification would have to be mutually agreed upon, would it not?
I would hope there would be assent to the modification, and I would look very hard for it. That the offeror is the offeror, and he *wants* this building built, so badly that he enters into a 1 million dollar contract, and it's clear now that offeree wants to finish it, however needs to modify the original contract in good faith, in a fair and equitable manner in view of the circumstances not anticipated, I do not see how the offeror would *have* to assent to it, especially since there is definite detrimental reliance on the offeree (assuming he is not going to be paid until full performance). Then again, if offeror said "stop with the building and here is your money" then offeree would have a tough case against offeror to say, "I won't stop until it is complete, I am modifying this contract and you give me another million."
I found this buried in my notes:
UCC 2-209 View: You just have to show there was an agreement to modify. If a party is coerced into agreeing into a modification, that party is protected by the requirement of good faith.
• Comment (2) a modification must meet the test of good faith imposed by this act.
UCC 1-201: Honesty in Fact. Observance of reasonable commercial standards of fair dealing in the trade.
Important to note: The modification is *only* for the Sale of Goods (it's article 2). The reason for §2-209 is to get around the legal technicalities of always making the courts find consideration, a meeting of the minds, and the like, which slows the actual building of the building.