Effect of Seller’s delay in delivering an “unconditional” acceptance

QUESTION: I am representing a buyer. We attached the Additional Provisions Addendum (Standard Form 2A11-T) to my client’s offer and noted in that Addendum that, in the absence of unconditional acceptance being delivered to Buyer, the offer would expire today at noon. The listing agent called me before noon today and told me that her client had signed the contract but that she is holding off sending the signed contract to me because she has another interested buyer who has scheduled a second showing. If the listing agent sends me a signed contract after the deadline, but that contract was signed before the deadline, can my buyer get out of the contract if he chooses?

ANSWER: You have raised an interesting question. Paragraph 1(g) of the Offer to Purchase and Contract (Standard Form 2-T) states that the “Effective Date” of the Contract is the date that the last one of Buyer and Seller have signed the Contract and such signing is communicated to the party making the offer or counteroffer, as the case may be. Here, the Seller signed the Buyer’s offer before the noon deadline, and the fact of that signing was also communicated to you prior to that deadline. These facts give the Seller an argument that the Contract was effective and that the Buyer is bound by its terms.

However, the fact that Seller did not communicate “unconditional” acceptance of the Buyer’s offer prior to the noon deadline gives the Buyer what we believe is a stronger argument. As noted above, the Addendum that was part of the Buyer’s offer clearly states that Buyer’s offer would expire unless “unconditional” acceptance is delivered to Buyer by the noon deadline. Here, what was communicated by the listing agent was merely the signing of the contract. That is not always the same thing as “unconditional” acceptance. Here, the listing agent informed you that she was intentionally withholding delivery of the signed contract in the hopes that a second buyer would come forth with a better offer.

We believe that a court would determine that Buyer’s offer expired by its own terms when Seller failed to deliver an unconditional acceptance by the noon deadline. Any “Contract” delivered after the deadline was nothing more than a counter-offer which Buyer could then accept or reject as he chooses.

Release Date: 5/23/2017