court even may perceive the theory or the claimant advanced in that case he has he has novel or as challenging op in that he has imposing a fairly high burden of proof on the to at least developed a factual record as well as it has been the case and was the case in virtually every case that both parties in this case have cited and have relied upon in their careers when the the governing of forty's in the city area i think the court will recognize and see that the procedural posture of each of the cases and there are a great many of them and i would submit to the court there are a great many of them injuries the very same blood pressure and hernia problems that the therefore there was no surprise here that it was reasonably foreseeable at the time he entered into the contract for these additional two hundred and seventy two lessons that because there was that it was reasonably foreseeable he'd been dancing with the injuries so what the difference what was the surprise what was parties argue about mortgage contingencies the ability above the borrower in this case the plaintiff to obtain financing for the for the transaction and the answer is well yes they did her but the question is well what what should they have foreseen i would say that yes there are there is no mortgage contingency quite sure ahc and so it is possible that they will not be able to secure the financing so it would seem to me that that's eminently reasonably foreseeable at the time of this contract drawn up what's that and that's correct and that some of the cases that are cited by the defendant raise that issue i mean there are cases where the the power loses his employment and therefore doesn't exercise a termination where there's a case where the interest rates what should ways and make it more difficult for a borrower to meet his obligation or its obligation i would submit that those are typical circumstances that the parties do foresee and then  nor could get financing for this type of transaction in other words the risk that was assumed was i may not be able to obtain financing because in a typical market i did not assume the risk that the credit markets would disappear in their entirety now i will concede that there may be perceived as a difficult burden to meet but again i would urge the court to at least permit my client to have the opportunity to meet that burden so getting back to foreseeability your honour's race point before this is different this case presents a different kind of foreseeability i would submit that no one in the fall of two thousand and eight and the late summer of two thousand and eight and even going into let's say december of two thousand and early two thought by two thousand and nine maybe there opportunity to get to convince the fact finder that a particular of eventuality or in the words of the past whether we have until supported circumstance has made performance of the promise vitally different from what should have been within the economic disaster as as as the latest boogie man you recall in the ninety's the bogeyman was whites a k and then after that it became nine eleven and that was the reason for you know the flames the industry failing the airplane industry and everyone blamed nine eleven for everything now are you not using this economic disaster and this is the latest  just this country no one and again one might perceive that statement and the board of proof relating to that assertion as being a fairly heavy burden of proof i don't deny that but we're not at that asses exceeded some one point six billion dollars which was more than enough in order to be able to meet this contract so again why should i he'd be allowed on this decision in fact in light of the the fact that is indicated in the complaint that he had more than sufficient funds in order to the right you know to continue with your honor i think you're confusing with all due respect with funds the fact that a real estate company that owns commercial towers has assets in excess of a billion dollars let's say does not mean that it has cash anywhere near that amount what it means is it owns brick from under him altogether that's when the doctrine of the possibility would have come to play is it not analogous to what has happened to your opponent and to his client that their financial legs were cut understanding after there was an inability to come up with the purchase price demonstrated that the parties in fact anticipated that this  the possibilty let me ask you so are you saying that the failure to introduce a contingency financing that that was also bargain out of the contract if you're saying justices is that the collapse of the world economy made it impossible for them to with change commercially practical finance that was the prom collapse of the world financial markets again this is a matter of degree it raises the fact question of foreseeability up also here while again i'm not suggesting that that what we put in the comply and what the facts would demonstrate were we given the opportunity is that the parties knew they had bought for financing there would be no transaction there would be no closing  first amendment attached to the first amendment is an email from the buyer to the seller which says among other things in order for i wonder to find us we would require to address these issues these undertaking your honor i'm suggesting that this evidence is the fact that the parties the reasonable expectations were that without finance it there would be no deal the contracts that it's just that that's the way it is for functions but again it's it's a question of forsee ability and it's a question of what the parties expected regarding the functioning of the credit markets and again there's threat the reference is made both in the brief and in the court below by the defendant to freeman's treatise on contracts about what parties typically do you know and what they could do and could they include mortgage contingency safe is an issue in this case and i agree that it's an issue in this case but i submit that it's an issue that cannot be conclusively determined by reference to a treatise it raises fetish and