Brief Fact Summary.
The plaintiff booked a vacation to safari vacation with the defendant. The booking required notice of cancellation 60 days prior to trip. The plaintiff made several unsuccessful attempts to contact the defendant to cancel the booking before deadline.
Synopsis of Rule of Law.
At the point when parties to an agreement experiences unanticipated conditions that make it unbiasedly difficult to perform under the terms of the understanding, such execution may be pardoned.
In May 2001, Alexandra Bush (offended party), an inhabitant of Staten Island, New York, booked a safari get-away with Micato Safaris (respondent) and ProTravel International, Inc. (respondent), a retail travel specialist in downtown Manhattan. The travel understanding obliged Bush to give ProTravel an underlying 20 percent store in the measure of $1,516 which she relinquished in the event that she didn't give notice of her aim to scratch off the safari by September 14, 2001, sixty days before the planned begin of the excursion. Then the attacks of September 11, 2001 occurred. The City of New York was in turmoil for a considerable length of time after the attack. Travel was limited to and from Manhattan and telephone utility had been interrupted. Bush made various unsuccessful endeavors to phone respondents to cross out the safari before the September 14, 2001 due date. Bush at long last achieved ProTravel to wipe out the get-away in mid-October. After respondents declined to restore Bush's store she documented suit to recoup the cash. From there on, respondents documented separate motions for summary judgment.
At the point when parties to an agreement experiences unanticipated conditions that make it unbiasedly difficult to perform under the terms of the understanding, may such execution be pardoned?
Yes. For the most part, truly once a party to an agreement has made a guarantee to perform it must do so or respond in damages, even if unexpected conditions make execution troublesome. However, the rule is not absolute.
The defendants (ProTravel) claim that it doesn’t matter even if all the evidence shows that it was impossible for the Plaintiff (Bush) to successfully telephone ProTravel in downtown Manhattan to cancel the trip after the 9/11 attack.
Once a party to a contract has made a commitment to perform it must do so or respond in damages even if it difficult to perform due to unforeseen circumstances. This rule is not absolute. If a party encounters issues that make it practically impossible to perform, the performance can be excused.
The 9/11 attack were unforeseen and beyond the control of the defendant (Bush). An Emergency was declared in the state, the U.S. military was mobilized, travel and telephone services were forbidden and disturbed. If Bush can establish objective impossibility of performance at the court, she can get suspension of her contractual obligation to timely cancel the performance.
The defendants’ motions for summary judgement was denied by the trial court.