The Opera Company of Boston, Inc. v. The Wolf Trap Foundation for the Performing Arts
United States Court of Appeals, Fourth Circuit
817 F.2d 1094 (1987)
The Wolf Trap Foundation (defendant) hired The Opera Company of Boston (plaintiff) to perform four operas, agreeing to make installment payments before each show and to provide the venue and lighting; the first three performances proceeded and were paid for as scheduled. A severe thunderstorm caused a power outage on the day of the fourth performance, and after consulting with the National Park Service and finding no timely fix or adequate backup power, Wolf Trap canceled the show without objection from the Opera Company. Wolf Trap then refused to pay the installment for the canceled performance, and the Opera Company sued for breach; the trial court found performance was indeed impossible but ruled that a power outage was foreseeable, and that foreseeability alone barred the impossibility defense, so Wolf Trap appealed.
Whether the defense of impossibility is automatically defeated whenever the event that made performance impracticable was foreseeable, or whether the proper inquiry is whether the risk was foreseeable enough that the promisor should have specifically guarded against it in the contract.