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Though it is true that the black letter of the law establishes the rule that once a party to a contract has made a promise, that party must perform or respond in damages for its failure, even when unforeseen circumstances make performance burdensome, the rule is not an absolute. Where the "means of performance" have been nullified, making performance objectively impossible, a party's performance under a contract will be excused.
Plaintiff travellers planned an African safari as part of their honeymoon. However, given the events of September 11, 2001, combined with a generalized fear of travel, the travellers untimely cancelled their reservations. The travel agency notified the trip coordinator of the cancellation. However, neither the travel agency, nor the trip coordinator, nor its parent corporation was willing to return the travellers' deposit. The travellers filed suit, and the travel agency and the trip coordinator moved for summary judgment.
Were the defendants entitled to summary judgment because of the plaintiffs’ untimely cancellation of their reservations?
The court denied the defendants’ motion for summary judgment, holding that the travellers' claim of excuse because of the frustration of the means of performance was supported, underscored, and punctuated by the official actions taken by civil authorities on September 11, 2001, and in the days that followed. Further, the travellers established material issues of fact as to whether they were capable of cancelling the trip in a timely manner, and subsequently, whether they maintained genuine fears about travel after the attack on the United States.