Cite as: 518 U. S. 839 (1996)
Opinion of Souter, J.
numerous statutory and regulatory changes over the years," and "changed three times in 1982 alone." 994 F. 2d, at 801.55
Given these fluctuations, and given the fact that a single modification of the applicable regulations could, and ultimately did, eliminate virtually all of the consideration provided by the Government in these transactions, it would be absurd to say that the nonoccurrence of a change in the regulatory capital rules was a basic assumption upon which these contracts were made. See, e. g., Moncrief v. Williston Basin Interstate Pipeline Co., 880 F. Supp. 1495, 1508 (Wyo. 1995); Vollmar v. CSX Transportation, Inc., 705 F. Supp. 1154, 1176 (ED Va. 1989), aff'd, 898 F. 2d 413 (CA4 1990).
2
Finally, any governmental contract that not only deals with regulatory change but allocates the risk of its occurrence will, by definition, fail the further condition of a successful impossibility defense, for it will indeed indicate that the parties' agreement was not meant to be rendered nuga-tory by a change in the regulatory law. See Restatement
55 See, e. g., Garn-St Germain Depository Institutions Act of 1982, Pub. L. 97-320, 96 Stat. 1469 (eliminating any fixed limits to Bank Board discretion in setting reserve requirements); Depository Institutions Deregulation and Monetary Control Act of 1980, Pub. L. 96-221, 94 Stat. 132, 160 (conferring discretionary authority on the Bank Board to set reserve requirements between 3 and 6 percent); 47 Fed. Reg. 3543 (lowering the reserve ratio from 4 to 3 percent); id., at 31859 (excluding certain "contra-asset" accounts from reserve calculations); id., at 52961 (permitting thrifts to count appraised equity capital toward reserves); see also Charter Federal Sav. Bank v. Office of Thrift Supervision, 976 F. 2d, at 212 (noting that because "[c]apital requirements have been an evolving part of the regulatory scheme since its inception," the Bank Board "would have expected changes in statutory requirements, including capital requirements"); Carteret Sav. Bank v. Office of Thrift Supervision, 963 F. 2d, at 581 (observing that "[i]n the massively regulated banking industry, . . . the rules of the game change with some regularity").
907
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