## Facts

- Purchasers (the Bells) contracted in 1977 to buy ten acres of undeveloped land from sellers (the Elders) for $25,000 for intended residential development.
- The contract required the Elders to furnish utilities, including culinary water, and contemplated development of the parcel.
- A later supplement extended the utilities deadline to October 15, 1980, and also required the Bells to obtain a building permit to construct a residence; it did not specify which obligation had to occur first.
- The Elders did not connect water service to the property by the deadline.
- The Bells never applied for a building permit, never paid a water hookup fee, and did not proceed with development.
- The trial court found the Elders were ready and able to provide water when the Bells obtained a permit and paid the necessary charges.
- The Bells sued for rescission and restitution, alleging breach based on the Elders’ failure to supply water; the trial court dismissed, finding no breach, and the Bells appealed.

## Issues

1. When a contract is silent on the order of performance, are the parties’ promises treated as concurrent conditions requiring mutual tender or readiness to perform?
2. May a buyer claim the seller breached a duty to furnish water by a stated date when the buyer did not tender performance of its own concurrent obligation to obtain a building permit (and take required steps to connect service)?
3. If the seller was ready and able to perform upon the buyer’s tender, is the buyer entitled to rescission and restitution for alleged nonperformance?

## Decision

- The Utah Court of Appeals affirmed the judgment for the Elders.
- The court held the obligations to obtain a building permit (Bells) and to furnish culinary water (Elders) were concurrent because the agreements did not establish a sequence of performance.
- Because the Bells did not tender or demonstrate readiness to perform their concurrent obligation, they could not treat the Elders as in breach.
- With no breach shown, the Bells were not entitled to rescission or restitution.

## Legal Principles

- If a bilateral contract does not indicate the intended order of performance, the parties’ opposing obligations are presumed concurrent.
- Where performance is due concurrently, neither party may claim breach by the other until the claiming party tenders (or is ready, willing, and able to tender) its own concurrent performance.
- A party’s duty may be satisfied by being ready and able to perform when the counterparty’s concurrent conditions are met, rather than by undertaking purposeless performance that the counterparty has not enabled.
- Rescission and restitution for breach require proof of breach; failure to tender a concurrent obligation defeats a breach-based claim for these remedies.

## Conclusion

The court treated the buyer’s permit obligation and the seller’s water obligation as concurrent conditions and held that, because the buyers never tendered their own required performance to initiate development, they could not establish the sellers’ breach or obtain rescission and restitution.


Bell v. Elder, 782 P.2d 545 (Utah Ct. App. 1989)