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socrateaser
socrateaser, Lawyer
Category: Legal
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I need Issues of Law to list in a court mediation filing (a

Resolved Question:

I need Issues of Law to list in a court mediation filing (a few former cases to list that support the following):

a) That the seller does not have to agree to the changed terms of the buyer from the offer to purchase especially when they involve substantial NEW Obligations and costs
b) The buyer is a lawyer (real estate) broker who did not identify themselves per MA law…law states “The law clearly states that the broker shall not buy or acquire real property in which the broker or his/her kin h
Submitted: 1 year ago.
Category: Legal
Expert:  socrateaser replied 1 year ago.
Hello...you asked:

a) That the seller does not have to agree to the changed terms of the buyer from the offer to purchase especially when they involve substantial NEW Obligations and costs

A: What you are requesting here is a statement of law which is already settled beyond all dispute. No contract can be modified without either (1) the consent of the parties or (2) detrimental reliance upon the promise of one party by another party. See generally, Cambridgeport Sav. Bank v. Boersner, 413 Mass. 432 597 N.E.2d 1017 (1992):

1. Theory of subsequent oral modification. It is a settled principle of law that "[t]he mode of performance required by a written contract may be varied by a subsequent oral agreement based upon a valid consideration." Siegel v. Knott, 316 Mass. 526, 528 (1944). First Pa. Mortgage Trust v. Dorchester Sav. Bank, 395 Mass. 614, 625 (1985). Wesley v. Marsman, 393 Mass. 1003, 1004 (1984). Schinkel v. Maxi-Holding, Inc., 30 Mass. App. Ct. 41, 47 (1991). Additionally, a provision that an agreement may not be amended orally but only by a written instrument does not necessarily bar oral modification of the contract. "Mutual agreement on modification of the requirement of a writing may ... `be inferred from the conduct of the parties and from the attendant circumstances' of the instant case." First Pa. Mortgage Trust v. Dorchester Sav. Bank, supra at 625, quoting Flynn v. Wallace, 359 Mass. 711, 715 (1971).

2. Theory of Detrimental Reliance. Restatement (Second) of Contracts § 90 (1) (1981) provides in relevant part: "A promise which the promisor should reasonably expect to induce action or forbearance on the part of the promisee or a third person and which does induce such action or forbearance is binding if injustice can be avoided only by enforcement of the promise. The remedy granted for breach may be limited as justice requires." The rule stated by § 90 requires that "the promisee must actually rely on the promise," and "the reliance must have been induced by the promise." E.A. Farnsworth, Contracts § 2.19 at 95-96 (1982). See also Greenstein v. Flatley, 19 Mass. App. Ct. 351, 357 (1985).


b) The buyer is a lawyer (real estate) broker who did not identify themselves per MA law…law states “The law clearly states that the broker shall not buy or acquire real property in which the broker or his/her kin h [customer's text cut off]

A: I presume here that you are looking for case law discussing 254 C.M.R. 3.00(11).

I have run a search of the Westlaw® legal data research service, which is one of the two largest proprietary subscription legal data services in the USA, and I regret that there are no reported appellate court opinions interpreting the above-cited regulation. Consequently, neither I nor anyone else can satisfy your request on your second issue -- because no relevant case law exists.

That said, I think that the regulation is fairly self evident as to what it requires. I don't know that it requires any interpretation.

Hope this helps.
socrateaser, Lawyer
Category: Legal
Satisfied Customers: 33504
Experience: Retired (mostly)
socrateaser and 2 other Legal Specialists are ready to help you
Customer: replied 1 year ago.

Hi...so just a quick question...explain if you can the theory of detrimental reliance and what area of my initial questions this is applying to...and why...thank you for your help

Expert:  socrateaser replied 1 year ago.
Certainly.

A contract can be created either bilaterally, via the agreement of the parties, each of whom obtains a benefit in exchange for some legal detriment. Bilateral contract example:

"Parties orally agree to sell one hot dog in exchange for $1.00.

Analysis of transaction:

The seller gets a $1.00 benefit in exchange for the legal detriment of having to provide a hot dog. The buyer gets the benefit of a hot dog in exchange for the legal detriment of having to provide $1.00.

Unilateral contract example (detrimental reliance):

Party 1 says, I'll pay Party 2 $1.00 to walk across the Brooklyn Bridge.

Party 2 starts walking.

Analysis:

Party 1 has made an offer to pay $1.00 for Party 2's performance under the terms of the offer. Party 2 commences performance in detrimental reliance upon Party 1's promise to pay. As soon as Party 2 starts walking, Party 1 can no longer revoke the offer, because Party 2 has detrimentally relied. If Party 2 stops walking, Party 1 doesn't have to pay, because Party 2 fails to perform. But, if Party 2 crosses the bridge on foot, then he/she is entitled to $1.00, because he/she performed the contract entirely in detrimental reliance upon Party 1's promise to pay.

A contract can be modified in this manner. Real estate example:

Buyer says to Seller, If you repair every defect that the home inspector has found, then I/buyer will waive my right under the purchase contract to the financing contingency. That is, the deal is now for cash, and if I don't pay in full prior to closing, then I'm in breach and you can sue me for damages. Seller makes the repairs without ever agreeing to Buyer's offer of the waiver. Buyer is bound to the modified contract, because Seller performed in reliance upon Buyer's offer.

Hope this helps.

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