## Facts

- A parent prepaid tuition to enroll his young son in a private school under a written enrollment contract stating the tuition was nonrefundable.
- Before the school year began, the child’s custodial parent (the payer’s ex-wife) refused to allow the child to attend the school.
- The child never attended, and the school provided no educational services to him.
- The payer demanded a refund and claimed a school official orally promised the tuition would be returned.
- The school did not refund the payment, and the payer sued seeking restitution based on impossibility, frustration of purpose, and alleged oral modification or rescission.

## Issues

1. Whether a third party’s refusal to allow the child to attend rendered performance “impossible” so as to excuse the nonrefundability clause.
2. Whether the child’s nonattendance frustrated the contract’s principal purpose so as to allow rescission and restitution despite the nonrefundable tuition provision.
3. Whether evidence of an alleged oral promise to refund created a genuine issue of material fact as to oral rescission, modification, or waiver of the written nonrefundability term.
4. Whether summary judgment was proper for either party.

## Decision

- The court held the impossibility doctrine did not apply because the contract’s subject matter was not destroyed and attendance remained possible.
- The court held frustration of purpose did not justify rescission on these facts, particularly given the contract’s express nonrefundable tuition allocation of risk.
- The court held evidence of an alleged oral refund promise raised a genuine issue of material fact on possible oral rescission, modification, or waiver.
- The court concluded summary judgment was improper for both sides and remanded for trial; it affirmed reversal of plaintiff’s summary judgment but reversed the directive to enter judgment for the school.

## Legal Principles

- Impossibility in contract law requires destruction of the subject matter (or comparable objective barrier) without the fault of the party seeking excuse; personal or third-party decisions that leave performance still possible do not suffice.
- Frustration of purpose is applied narrowly and generally will not override an express contractual risk allocation where the contract’s performance remains possible and the alleged frustration stems from the claimant’s personal circumstances.
- A later oral agreement, waiver, or mutual rescission may alter enforcement of a written contract term, and disputed evidence of such an agreement presents a fact question not resolvable on summary judgment.
- On summary judgment, courts do not weigh credibility; conflicting evidence on a material term requires trial.

## Conclusion

The court rejected impossibility and frustration of purpose as bases to recover prepaid nonrefundable tuition when the child’s nonattendance resulted from a custodial parent’s refusal, but it remanded for trial because the alleged oral promise to refund created a material factual dispute about whether the parties later modified, waived, or rescinded the nonrefundability provision.


Brenner v. Little Red Sch. House, Ltd., 302 N.C. 207, 274 S.E.2d 206 (N.C. 1981)