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As an example, at one point during New York's COVID vaccination campaign Governor Cuomo issued the following rules:

  1. If you vaccinate someone who is not eligible, you're getting a huge fine
  2. If you don't use up your vaccine doses, you're getting a huge fine

So vaccinators were put in a seemingly impossible bind where they had to use up all their doses, but didn't necessarily have enough eligible people at their door to get one. Is there a legal term for these kinds of situations?

NB: Please avoid discussing COVID, vaccines, Governor Cuomo or the specific details of his executive orders. This is merely used as an example of what I'm talking about and I'm sure I could look up a lot more examples if I knew the right term.

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  • See also en.wikipedia.org/wiki/Ultra_posse_nemo_obligatur (and variants like “ad impossibilia nemo tenetur”, „impossibilium nulla obligatio“, etc.)
    – Mormegil
    Jan 22 at 9:19
  • 9
    I don't know if this term is that usual among lawyers, but a layman term for such a situation is a Catch-22.
    – Philipp
    Jan 22 at 10:24
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    @Philipp Other layman terms for it include "typical politics" and "regulatory incompetence." :)
    – reirab
    Jan 22 at 16:51
  • ...a "recreational impossibility"? Jan 22 at 22:14
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While less specific than the term mentioned by @DavidSiegel (i.e. an "Antinomy"), "impossibility", "impossibility of performance", and "impracticability" are more frequently used. If the obligation is imposed by contract rather than by a statute or regulation, the term "frustration of purpose" is also frequently used. Even more generally, a situation like this is called a "dilemma."

More obscurely, sometimes this gets litigated in the frame of whether non-compliance with the law was a voluntary act, i.e. the actus reus necessary to establish a prima facie case of a violation of a law imposing a criminal or quasi-criminal penalty. The "choice of evils" doctrine could also apply although this is a much narrower doctrine excusing liability than many people believe it to be.

There are also a couple of other possible outcomes.

Sometimes a court would treat this situations as an implied ambiguity or inconsistency in the law that calls for the court to interpret the true meaning of the statute or regulation. For example, in this circumstance, it is implausible that the statute or regulation was intended to put good faith vaccine distributors in a damned if you do, damned if you don't situation where they would be fined no matter what they did because conforming to the law was impossible. So a court might conclude that the requirement that "If you don't use up your vaccine doses, you're getting a huge fine" contains an implied condition that this only applies if there are sufficient people who eligible to obtain the vaccination to use all of your vaccine doses (which as as matter of practicality is very likely to be true, so it is something of a false conflict as applied in most cases).

But it isn't at all uncommon for people to put themselves in situations where their on ill advised or wrongful conduct puts them in a position in which now, after their prior bad acts, anything they do will be a crime or a civil offense, and they are indeed damned if they do and damned if they don't.

For example, if you start to attempt to steal a car and see a baby in the back, you can either continue, and face kidnapping charges and car theft charges, or you can stop after you have already done enough to make you guilty of attempted car theft even if you abandon the crime at that point to prevent yourself for kidnapping the child. No matter what you do, you are stuck committing one crime or another. But you actions will determine which crime you will be guilty of committing. The fact that at the final moment of decision that determines which crime you will be guilty of, any choice you make will expose you to criminal liability, doesn't make these laws invalid, because this Hobson's choice (using the term only loosely) is one that you brought that on yourself.

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  • 10
    I'm not sure the car example really captures what's going on here, because in that case, you've already willfully committed a crime (attempted car theft) at the point where you face a choice that determines which set of crimes actually gets committed. In contrast, I think the heart of the original question is that a person or entity has not done anything illegal and hasn't made any bad decisions that would be expected to lead to something illegal, yet they wind up in a situation where they can't avoid breaking the law in one way or another.
    – David Z
    Jan 22 at 5:09
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    If you enter a car and find a baby left alone in it shouldn't you call emergency or social services, and take care of the baby until someone with proper authority comes up ? You might even be forgiven to break into the car in the first place if you argue it was done after a duty of care towards the baby.
    – Hoki
    Jan 22 at 9:39
  • "which as as matter of practicality is very likely to be true"--this speculation is incorrect. NY's rules on who can receive vaccinations are sufficiently strict, and the window of usage for a multi-dose container of vaccine sufficiently small, that a couple cancellations or no-shows will result in doses with no one to receive them. My neighborhood clinic had a few no-shows & had to send someone door-to-door to nearby nursing homes begging for anyone eligible for the vaccine, & still had to throw away doses. (OP suggested we not engage too much with the example for a reason.)
    – Tiercelet
    Jan 22 at 15:25
  • @Tiercelet .... that example could possibly have been foreseen, at which point a waiting list approach might have helped. I would hope the regulator would consider wether failure to perform is due to negligence or not before enforcing a fine.
    – ptyx
    Jan 22 at 17:01
  • @Hoki Perhaps if it is too cold or too hot or there's some reason to think the child is in distress Jan 22 at 17:22
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Such a situation is known as an "Antinomy". That is, "a real or apparent mutual incompatibility of two laws". The Free Dictionary says this means:

An expression in law and logic to indicate that two authorities, laws, or propositions are inconsistent with each other.

-4

Pervagatus Incompetentem

And for what it's worth, a governor's orders are not laws and have not the force of law, so it's really unimportant if they are pervagatus incompetentai or not, as they can be ignored either way.

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  • 2
    Could you provide a citation for this? This term has zero search results in a search of the web, which leads me to think that it is not a real term.
    – Ryan M
    Jan 22 at 20:51
  • 1
    Also, the order in question was issued by the state Department of Health. I'm not immediately finding the order in question, but it could well have been issued pursuant to a law giving the department that authority, which would mean it cannot, in fact, be ignored.
    – Ryan M
    Jan 22 at 20:58
  • Executive orders are not legislation, but they may still have the force of law.
    – ceejayoz
    Jan 22 at 22:02
  • If it helps, Ryan M: it is not correct Latin, Medieval or otherwise.
    – JdeBP
    Jan 23 at 12:33

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