Felt v. McCarthy ( 1996 )

Durham, C.J.,

(concurring) — I concur in that portion of the majority opinion which declines to apply the doctrine of frustration to remedy McCarthy’s failure to allocate the risk of his frustration in the contract itself. As we suggested in Washington State Hop Producers, Inc. Liquidation Trust v. Goschie Farms, Inc., 112 Wn.2d 694, 708, 773 P.2d 70 (1989), the doctrine of frustration may not excuse a failure to allocate foreseeable risks where the party claiming frustration could have controlled the language of the contract to the extent of allocating that risk. "Whether or not the peculiar imposition of wetlands regulation was foreseen by the parties, the general risk of frustration due to land use regulation is foreseeable. Felt v. McCarthy, 78 Wn. App. 362, 366, 898 P.2d 315 (1995) (citing Mohave County v. Mohave-Kingman Estates, Inc., 120 Ariz. 417, 586 P.2d 978, 984 (1978)). Absent an express allocation of that risk to the seller, the buyer-developer assumes such risk.