## Facts

- An opera company contracted to present four fully staged operatic performances at an outdoor performing arts venue in Virginia in June 1980.
- The venue sponsor agreed to pay $272,000 in installments, including a final installment due before the curtain on the fourth performance, and to provide the performance space and specified lighting equipment.
- The first three performances occurred as scheduled, and the sponsor paid the amounts due for them.
- Before the fourth performance, a severe thunderstorm caused a complete power outage at the park, affecting the auditorium, parking, and walkways.
- The utility advised that power likely would not be restored until late at night or possibly until morning.
- With thousands of patrons present or expected, the National Park Service recommended immediate cancellation and disclaimed responsibility for safety if the performance proceeded without adequate lighting.
- The sponsor canceled the fourth performance based on public-safety concerns; the opera company was ready to perform, and the absence of adequate lighting was the reason the show did not proceed.
- The sponsor did not pay the final installment; the opera company later sued for breach of contract to recover the unpaid balance.

## Issues

1. Whether the sponsor could invoke impracticability/impossibility to excuse nonpayment when a storm-caused power outage made the performance unsafe or impracticable.
2. Whether the mere foreseeability of a power failure categorically defeats the impracticability/impossibility defense.
3. Whether the non-occurrence of a total power outage was a basic assumption of the contract and, if not, whether the contract or circumstances allocated that risk to the sponsor.

## Decision

- The Fourth Circuit reversed the judgment for the opera company and remanded with instructions.
- The court held that the district court applied an incorrect legal standard by treating foreseeability of the outage as a complete bar to the impracticability/impossibility defense.
- The case was remanded for further findings under the modern doctrine, including whether the non-occurrence of the outage was a basic assumption of the contract and whether the sponsor reasonably should have guarded against or assumed the risk.

## Legal Principles

- Modern impossibility includes “impracticability”: performance may be excused when a supervening event makes performance impracticable due to extreme difficulty, expense, or risk, not only literal impossibility.
- The core inquiry is whether the event’s non-occurrence was a basic assumption on which the contract was made and whether the risk was allocated (expressly or implicitly) to one party.
- Foreseeability is a factor in risk allocation, not a categorical bar; courts must examine the likelihood of the event and whether it was reasonable to expect precautions or contractual protection.
- Governmental safety recommendations and safety-related cancellation support impracticability but do not alone resolve which party bears the contractual risk of the supervening event.
- Where a party undertakes obligations related to the venue and technical requirements (such as lighting), the scope of that undertaking may bear on whether the party assumed the risk of a contingency like a total outage.

## Conclusion

The court held that foreseeability alone cannot defeat an impracticability defense and required a remand to determine, under a basic-assumption and risk-allocation analysis, whether the storm-induced power outage excused the sponsor’s nonpayment for the canceled performance.


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