Cite as: 518 U. S. 839 (1996)
Opinion of Souter, J.
the Government as such a contractor has not satisfied the conditions for discharge in the present case.
1
For a successful impossibility defense the Government would have to show that the nonoccurrence of regulatory amendment was a basic assumption of these contracts. See, e. g., Restatement (Second) of Contracts § 261; 2 Farnsworth, supra, § 9.6, at 549-550. The premise of this requirement is that the parties will have bargained with respect to any risks that are both within their contemplation and central to the substance of the contract; as Justice Traynor said, "[i]f [the risk] was foreseeable there should have been provision for it in the contract, and the absence of such a provision gives rise to the inference that the risk was assumed." Lloyd v. Murphy, 25 Cal. 2d 48, 54, 153 P. 2d 47, 50 (1944).53 That
53 See also Transatlantic Financing Corp. v. United States, 363 F. 2d 312, 315 (CADC 1966) (requiring that the contingency rendering performance impossible be " 'something' unexpected"); Companhia de Navegacao Lloyd Brasiliero v. C. G. Blake Co., 34 F. 2d 616, 619 (CA2 1929) (L. Hand, J.) (asking "how unexpected at the time [the contract was made] was the event which prevented performance"); see also Kel Kim Corp. v. Central Markets, Inc., 70 N. Y. 2d 900, 902, 524 N. E. 2d 295, 296 (1987) ("[T]he impossibility must be produced by an unanticipated event that could not have been foreseen or guarded against in the contract"); Barbarossa & Sons, Inc. v. Iten Chevrolet, Inc., 265 N. W. 2d 655, 659 (Minn. 1978) (asking "whether the risk of the given contingency was so unusual or unforeseen and would have such severe consequences that to require performance would be to grant the promisee an advantage for which he could not be said to have bargained in making the contract"); Mishara Construction Co. v. Transit-Mixed Concrete Corp., 365 Mass. 122, 129, 310 N. E. 2d 363, 367 (1974) ("The question is . . . [w]as the contingency which developed one which the parties could reasonably be thought to have foreseen as a real possibility which could affect performance?"); Krell v. Henry, 2 K. B. 740, 752 (1903) ("The test seems to be whether the event which causes the impossibility was or might have been anticipated and guarded against"); 18 W. Jaeger, Williston on Contracts § 1931, p. 8 (3d ed. 1978) ("The important question is whether an unanticipated circumstance has made performance of the promise vitally different from what should reasonably have been
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