CHARLES FRIED: Now we can look at these surprise cases
and see that they cast further light on the mistake cases.
In the mistake cases-- you will remember, for instance, the Buck-a-Book
case-- even if the bookstore owner claims
surprise-- oh, that was a first addition worth $100?
I didn't know that-- he still loses because the situation was
one in which by tossing the book into the buck-a-book bin
and letting people come in and take their chances,
he, too, was taking his chances.
They were both gambling, and the bookseller, in this case, lost.
The book buyer won.
It's like the horse, Paul Revere.
Well, similarly, in some of these frustration and impossibility cases,
you'll see that it wasn't a shared premise of both parties
that something would not happen, that the procession would go forward,
for example.
It is possible, in fact, that they had both understood
there was a risk of a cancellation happening.
And they could've made this understanding explicit,
putting in their contract, you can have the room for these two days,
and you're going to pay me whether the procession takes place or not.
I suppose anybody who had really contemplated this possibility
and had signed a contract which said, I'm
going to pay you whether the procession takes place or not,
might have insisted on a bit of a discount
to compensate them for that risk.
But if he had contracted with that risk in view,
he certainly can't complain if it turns out things went wrong.
The premise of these frustration and impossibility cases
is that the parties hadn't bargained with that possibility,
with that risk in mind.
And therefore, their minds had not truly met,
which means that the fairest thing to do is to call the whole thing off and give
everybody back their money.