Cengage Advantage Books: Fundamentals of Business Law Today 10th Edition by Roger LeRoy Miller

تمرين 26

FACTS Hilary Kolodin, a jazz singer, was personally involved with John Valenti, the sole shareholder and president of Jayarvee, Inc. Jayarvee manages artists, produces recordings, and owns and operates a jazz club in New York City. Kolodin contracted professionally with Jayarvee for recording and management services. After Kolodin and Valenti's personal relationship deteriorated, Kolodin asked a New York state court to issue a temporary protection order, alleging domestic abuse. The parties then agreed under a court-ordered stipulation to have no further contact with one another. The stipulation specified that "no contact shall include no third party contact, exceptingcounsel." Later, Kolodin filed a suit in a New York state court against Valenti, alleging breach of her Jayarvee contracts and seeking their rescission. The court declared the contracts between Kolodin and Jayarvee terminated. Valenti appealed.
ISSUE Did Kolodin and Valenti's stipulation render the performance of Kolodin's Jayarvee contracts objectively impossible?
DECISION Yes. A state intermediate appellate court affirmed the lower court's ruling. The court concluded that, "In undertaking to perform recording and management contracts, theeventuality that the parties would subsequently stipulate to forbid contact with one another could not have been foreseen or guarded against."
REASON Impossibility excuses a party's performance when the destruction of the means of performance makes performance objectively impossible. But the impossibility must be created by an event that could not have been foreseen at the time of contract formation. In this case, the "no contact" stipulation between Kolodin and Valenti destroyed the means of performing Kolodin's contracts with Jayarvee. The contracts were for personal services and required "substantial and ongoing communication" between Kolodin and Jayarvee. Because Jayarvee is a small organization and Valenti oversees its daily operations, performance of the contracts would have required his input, thereby violating the stipulation. Even if the communication had been carried out only through the company's employees, the stipulation's ban on third party contact would have been violated. Furthermore, it was not foreseeable at the time the Jayarvee contracts were formed that Kolodin and Valenti would agree to have no contact with one another.
FOR CRITICAL ANALYS IS-Legal Environment Consideration Should Kolodin's role in bringing about the "no contact" stipulation through her request for a protection order have rendered the doctrine of impossibility inapplicable? Explain.