No, the question would rather boil down to: Would a judge find it reasonable that the development and shipping of a product clearly stated to be in development took more than double the time as stipulated. (AFAIK the original stipulation was 4 months.)
Does this mean that it's not possible to offer a product for sale while it's still in development?
I am a latecomer to BTC, but to me the whole BFL thing is a crowdfunding project that went sour because of many very impatient buyers.
You can always offer a product for sale when it's still in development. The building industry does it every day, selling off the plans.
If something takes 2-3 times as long to produce as originally stipulated, then you would want to have a contract in place with performance clauses, which I doubt anyone bothered to in the BFL case. Most people buying mining gear are not that bright, or they don't care.