In May 2001, Bush purchased an African safari package for herself and her fiancé. She paid a 20 percent deposit. The contract stated that in case of cancellation more than 60 days in advance of the tour, there would be a $50 per person penalty, and in case of cancellation 30-60 days in advance, the penalty would be 20 percent of the total retail tour rate. Sixty-four days before the tour was to begin, September 11 terror attacks on New York City occurred. As a result of the concern about terrorism surrounding that time, Bush and her fiancé decided to cancel the trip. They began to attempt to cancel on September 12, but phones were down and offices were closed, so Bush did not manage to convey her cancellation to ProTravel until September 27, which was within the 30-60 day period. ProTravel did not manage to convey the cancellation to Micato, the tour operator, until October 4, also within the 30-60 days/20 percent penalty period.
Because of this, the tour operator and travel agency kept the deposit. Bush claimed that impossibility because of frustration of the means of performance prevented her from canceling within the more-than 60-day period. ProTravel filed a motion for summary judgment. Should the court grant it?

  • CreatedJuly 16, 2014
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