906
Opinion of Souter, J.
inference is particularly compelling, where, as here, the contract provides for particular regulatory treatment (and, a fortiori, allocates the risk of regulatory change). Such an agreement reflects the inescapable recognition that regulated industries in the modern world do not live under the law of the Medes and the Persians, and the very fact that such a contract is made at all is at odds with any assumption of regulatory stasis. In this particular case, whether or not the reach of the FIRREA reforms was anticipated by the parties, there is no doubt that some changes in the regulatory structure governing thrift capital reserves were both foreseeable and likely when these parties contracted with the Government, as even the Government agrees. It says in its brief to this Court that "in light of the frequency with which federal capital requirements had changed in the past . . . , it would have been unreasonable for Glendale, FSLIC, or the Bank Board to expect or rely upon the fact that those requirements would remain unchanged." Brief for United States 26; see also id., at 3, n. 1 (listing the changes).54 The
Federal Circuit panel in this case likewise found that the regulatory capital requirements "have been the subject of
within the contemplation of both parties when they entered into the contract. If so, the risk should not fairly be thrown upon the promisor"). Although foreseeability is generally a relevant, but not dispositive, factor, see 2 E. Farnsworth, Contracts § 9.6, at 555-556; Opera Company of Boston, Inc. v. Wolf Trap Foundation for the Performing Arts, 817 F. 2d 1094, 1101 (CA4 1987), there is no reason to look further where, as here, the risk was foreseen to be more than minimally likely, went to the central purpose of the contract, and could easily have been allocated in a different manner had the parties chosen to do so, see id., at 1099-1102; 18 Williston on Contracts, supra, § 1953, at 119.
54 The Government confirmed this point at oral argument. When asked whether FIRREA's tightening of the regulatory capital standards was "exactly the event that the parties assumed might happen when they made their contracts," the Government responded, "Exactly. Congress had changed capital standards many times over the years." Tr. of Oral Arg. 9.
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