LISA COVIELLO vs. PATRICIA K. RICHARDSON., 76 Mass. App. Ct. 603

Summary

The appellate court held that the OTP required the parties to execute a PS by February 26, 2008. While the buyer could not unilaterally change the mortgage commitment date, her request to modify the date did not constitute a breach and a new offer. Neither party was in breach merely by failing to sign the PS by February 26, and neither party waived that deadline. There were conflicting accounts of a telephone call between the parties' attorneys as to whether the seller clearly manifested a refusal to perform under the original PS, or merely rejected the request for a modification to its terms. Thus there was a fact issue as to the alleged breach. There was no conclusive evidence that the seller would have rejected the buyer's tender of the original PS before 5:00 P.M. on February 26. While there was some uncertainty as to the seller's willingness to close based on her assertions that she was not bound by the OTP after the buyer's request to modify the date, she argued that the parties'...