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Opera Co. of Bos., Inc. v. Wolf Trap Found. for Performing Arts - 817 F.2d 1094 (4th Cir. 1987)


The first fact to be established in making out a defense of impossibility or impracticability of performance is the existence of an occurrence of an event, the non-occurrence of which was a basic assumption on which the contract was made. And, in determining the existence of such occurrence, it is necessary to have in mind the definition of an "occurrence" in this context as that which, because of the destruction, or such deterioration of a specific thing necessary for the performance of the contract makes performance impracticable. The occurrence must be unexpected but it does not necessarily have to have been unforeseeable. A requirement of absolute non-foreseeability as a condition to the application of the doctrine would be so logically inconsistent that in effect it would nullify the doctrine.


Plaintiff Opera Company of Boston, Inc. filed a breach of contract suit to recover the agreed payment from the defendant The Wolf Trap Foundation for the Performing Arts for four operatic performances at the Filene Center in The Wolf Trap Park. Plaintiff Opera asserted it was prepared, able and willing to perform as agreed but that it was prevented from giving one of the performances because of cancellation by the defendant Foundation of the performance on the ground it considered the performance impossible as a result of an electrical storm that had terminated power to the pavilion during the time this performance was to be given. The court found against defendant Foundation's claim of cancellation of the performance because of an unexpected occurrence and granted judgment in favor of plaintiff Opera. Defendant Foundation sought appellate review.


Was the dismissal of the Foundation's defense of impossibility of performance proper?




The court reversed and remanded the judgment of the district court and held that the district court should not have dismissed the defense of the obligor, the Foundation, merely because it found that the event, which prevented the performance, was foreseeable. Foreseeability was at best but one fact to be considered in resolving how likely the occurrence of the event in question was and whether its occurrence was of such reasonable likelihood that the Foundation should not have merely foreseen the risk but, because of the degree of its likelihood, the obligor should have guarded against it or provided for non-liability against the risk. This was a question to be resolved by the trial judge after a careful scrutiny of all the facts in the case. The trial judge had made no such findings. Therefore, it was necessary to remand the cause for such findings.

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