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Vanderbilt Journal of Transnational Law

Mark B. Baker

First Page

347

Abstract

Y2K problems at this point in time are reasonably foreseeable due to the amount of attention given the subject. Contracting parties should examine potential Y2K problems arising internally and address them before January 1, 2000. Yet the extent of Y2K problems, be they widespread or solitary occurrences, remains unforeseeable and unpredictable. Even those parties having adequately addressed internal Y2K problems can experience difficulties due to external parties having failed to become Y2K-compliant. This "second tier" of unforeseeability supports the use of excused performance, but the "first tier" foreseeability that Y2K problems potentially exist prevent viable use of the defense. In this sense, this Article suggests that Y2K problems are both foreseeable and unforeseeable and that a defense more suitable than contractual excuse be available to those parties acting to prevent Y2K difficulties.

In the same vein, this Article recognizes the plight of those parties that have acted in a timely and prudent manner to avert Y2K difficulties. Due to the interactive and interdependent nature of the domestic and global economy, such parties remain at the mercy of numerous third parties. This vulnerability is a necessary element of intranational and international relations, but it may prove imminently debilitating should contract performance depend on those numerous third parties. Because such a web of interrelationships has developed over the centuries, and because the interrelationships prove vital to performance of many contracts, the focus of Y2K issues should be societal, not individual. Contract law's foundation is on "autonomous individual[s]" while tort law acknowledges those situations where accidents result from interactive activities. Y2K complications may disrupt numerous facets of commercial and societal intercourse, many of which are utterly outside the realm of a contracting party's control. This realization demands that Y2K losses be considered in light of tort law as opposed to contract law.

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