from Florida Realtor Magazine, December 2007 | page 11

Know the Law
Can Counteroffer Deadlines Be Waived?

Including a specific time period for acceptance of an offer/counteroffer can be a valuable negotiation tool. But what happens if the recipient receives the offer after the deadline? With lowball offers frequently on the table, this issue has been a hot button for many sales associates.

This was the issue presented to the 3rd District Court of Appeal (DCA) in the case of Hammond v. DSY Developers LLC, 951 So2d 985 (Fla. 3d DCA 2007).

In July 2004, the seller of a 10-acre tract of land in Indian River County entered into negotiations with a buyer. During the course of several months, the parties exchanged numerous offers and counteroffers. InNovember 2004, the buyer sent the seller an offer accompanied by a $25,000 deposit check and a Nov. 25 deadline for acceptance.

The seller countered the buyer’s offer—with a Dec. 10 deadline for acceptance—but failed to mail it until Dec. 15. As a result, the buyer didn’t receive the seller’s counteroffer until Dec. 20.

Nevertheless, the buyer decided to accept the seller’s counteroffer, and on Jan. 12, his attorney sent the seller’s attorney the executed contract. To the buyer’s surprise, the seller contended that the buyer’s failure to accept the counteroffer by the Dec. 10 deadline had voided the transaction.

See You in Court!
The buyer sued the seller and  contended that an acceptance deadline is waived when a counteroffer is delivered after the date specified in it; that the buyer had accepted the seller’s counteroffer within a reasonable period; and that, therefore, an enforceable contract existed. The local trial court agreed.

Court of Appeal Agrees
The seller appealed the trial court’s decision to the 3rd District Court of Appeals (DCA), which noted that the central question presented (whether a deadline for acceptance of an offer could be waived by delivering the offer after the deadline had passed was one of “first impression.” A case is said to be of first impression when it presents an entirely novel question of law to the court and cannot be governed by any existing precedent).

In reaching this conclusion, the DCA noted that “contractual terms may be waived, both expressly and implicitly, by the party to whom the term benefits” and that here, the seller’s actions, in mailing his counteroffer to the buyer after the Dec. 10 deadline constituted an implied waiver of the acceptance date as a matter of law. 
 
The DCA pointed out that “the general Florida rule is that when a contract does not expressly fix the time for performance of its terms, the law will imply a reasonable time.”

 The parties had a course of dealings where offers and counteroffers remained open for weeks throughout their negotiations.
 
In light of these undisputed dealings, coupled with the buyer’s receipt of the seller’s counteroffer right before the December holidays, the DCA found that the buyer had in fact accepted the seller’s counteroffer within a reasonable time.   

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