PISTOFTZIAN v. CARRASQUILLO (2022)

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

The defendant appeals from a judgment of the Land Court ordering specific performance of an agreement for the purchase and sale of certain real property, and awarding damages.² The underlying dispute concerns the plaintiff's offer to purchase the defendant's commercial property (OTP). The defendant argues that he did not breach the agreement formed by his acceptance of the OTP since the plaintiff failed to tender a more complete purchase and sale agreement by the deadline imposed by the offer, and the defendant did not waive the clause making time of the essence of the parties’ agreement. We discern no error, and affirm.

The controlling factor in whether an agreement is a binding contract is the intention of the parties to be bound. See McCarthy v. Tobin, 429 Mass. 84, 87 (1999). Generally, courts “hold parties to deadlines they have imposed on themselves when they agree that time is of the essence.” McCarthy, 429 Mass. at 88, citing Vickery v. Walton, 26 Mass. App. Ct. 1030, 1031 (1989). A deadline may be waived and time deemed not of the essence by the parties’ words and conduct. See McCarthy, 429 Mass. at 88-89; Church of God in Christ, Inc. v. Congregation Kehillath Jacob, 370 Mass. 828, 834 (1976) (oral extension and continued dealings between parties signified waiver). After a deadline is waived, a party has a reasonable amount of time in which to satisfy their obligations. See McCarthy, 429 Mass. at 89.

Here, both parties executed the OTP, binding both to the sale so long as the purchase and sale agreement was signed by the stated deadline.³ The day of the signing deadline, the defendant's attorney reached out to the plaintiff's attorney to request an extension of one day.⁴ The parties’ attorneys continued to correspond during the following day, when the defendant's attorney requested an extension of one more day. The plaintiff's attorney continued to email the defendant's attorneys to check the status of the draft agreement, and the plaintiff signed the draft agreement. Several days after the initial signing deadline had passed, the defendant declared that he did not wish to sell the property.

The defendant's counsel's express requests for extensions of time to sign the agreement, and the parties’ continued communications about the status of the agreement after the original signing deadline had passed, combine to operate as a waiver of strict compliance with the deadline for signing a more complete agreement set forth in the OTP. Even after the defendant's second extension request, the parties continued to communicate about the status and substance of the draft agreement, also indicating that the extended deadline was waived. The plaintiff fulfilled his contractual obligations -- signing the draft purchase and sale agreement and tendering the agreed deposit -- five days after the original deadline, within a reasonable time. See McCarthy, 429 Mass. at 89 (twelve days after the original deadline was a reasonable time to sign the agreement and tender deposit). Nor did either party object to the extensions over the course of their negotiations. See McCarthy, 429 Mass. at 89. Based on the parties’ words and conduct, the judge did not err in his conclusion that the original deadline was waived and time was not of the essence. The defendant therefore was in breach of the parties’ agreement, and the plaintiff is entitled to damages for carrying costs.

Judgment affirmed.

FOOTNOTES

2.   The defendant raises no challenge to the award of damages, other than his contention that he did not breach the parties’ agreement.

3.   The defendant made minor changes to the original offer before signing. The plaintiff then signed the defendant's counteroffer.

4.   The plaintiff's attorney responded that she was “fine with all [the defendant's] changes ․ If we could at least wrap up the agreement so we have a final version, I know that my client would appreciate the same.”