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ScottyMacESQ, Lawyer
Category: Real Estate Law
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Experience:  Licensed General Practice Attorney, Texas
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Illinois residential real estate sale I am selling my house.

Resolved Question:

Illinois residential real estate sale

I am selling my house. I received an offer from a buyer for $100K. I accepted the offer. The contract I signed has an "Attorney Review" provision. This allows the buyer's attorney, within 5 business days after I signed, "to make modifications to the contract ... in writing ... stating the ... terms to be modified and proposed revisions. ... THE PARTIES ACKNOWLEDGE THAT MODIFICATION, PURSUANT TO THIS PROVISION, SHALL CONSTITUTE A COUNTEROFFER."

What force and effect does a "counteroffer" in this situation have, since a contract has already been signed? I am thinking that it is intended that the force and effect of a counteroffer now would be the same as if contract had NOT been signed, and that if I reject the proposed revisions we have no agreement, and I lose my buyer. Right?

Please advise in detail.

Thank you.
Submitted: 3 years ago.
Category: Real Estate Law
Expert:  ScottyMacESQ replied 3 years ago.

ScottyMacEsq :

Thank you for using JustAnswer. I am researching your issue and will respond shortly.

ScottyMacEsq :

That's correct. In contract law, a counteroffer is a negation of an acceptance. That is, it allows you to accept the terms, or if you reject them, then there's no contract. Because the contract specifically says that this is a condition of a valid contract, it's what's known as a "condition subsequent", and would allow the buyer to be able to modify the contract, but that the modifications would still have to be accepted by you.

ScottyMacEsq :

Note, however, that it's not in the hands of the buyer, but rather the attorney of the buyer, and that there still has to be "good faith".

ScottyMacEsq :

That means that the buyer can't modify the contract to include ridiculous terms, but only good faith modifications. Otherwise, it could still be a breach.

ScottyMacEsq :

In short, it's not uncommon to have such a clause in the contract, primarily just for attorney review to make certain there are no "gotcha" clauses. I wouldn't say that such a clause is common, but it's certainly not unheard of, and it's primarily just for the protection of the buyer (not necessarily for the benefit of the buyer, to be able to change the contract to his/her benefit).

Customer: replied 3 years ago.
OK, I shall wait. Thanks.
Expert:  ScottyMacESQ replied 3 years ago.
Hope that clears things up a bit. If you have any other questions, please let me know. If not, and you have not yet, please rate my answer AND press the "submit" button, if applicable. Please note that I don't get any credit for my answer unless and until you rate it a 3, 4, 5 (good or better). Thank you, XXXXX XXXXX luck to you!
Customer: replied 3 years ago.

Can it be both a condition subsequent and a counteroffer? If the former, contract stands but with a modification. If the latter, contract is void.


Re attorney good faith: please advise criteria for good faith.

Expert:  ScottyMacESQ replied 3 years ago.
Without that clause, the contract would still stand. That clause makes it essentially so that the seller could back out if the modifications are not agreed to.

Good faith is a "question of fact" for a jury to decide whether this was actually in good faith, but it's essentially a state of mind consisting in (1) honesty in belief or purpose, (2) faithfulness to one's duty or obligation, (3) observance of reasonable commercial standards of fair dealing in a given trade or business, or (4) absence of intent to defraud or to seek unconscionable advantage. If a jury determines that there was a lack of good faith in this "counter offer" then it could determine that said counteroffer would be void and the original contract is valid.
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Expert:  ScottyMacESQ replied 3 years ago.
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