## Facts

- A buyer contracted to purchase the sellers’ residence for $40,000, paid a $4,000 down payment, and agreed to pay the balance at closing (part cash, part by assuming an existing mortgage).
- The closing date was adjourned at the buyer’s request from November 15, 1959 to December 15, 1959.
- Before the adjourned closing, the buyer’s attorney sent a letter rejecting title as “unmarketable” due to “illegality of the premises” and demanded return of the deposit and title-search costs, but did not state specific defects.
- On December 15, 1959, the buyer did not tender the purchase price and the sellers did not tender a deed; the buyer again demanded return of the deposit and the sellers refused.
- After litigation began, the buyer first specified alleged defects: (i) a swimming pool lacked a certificate of occupancy (though a construction permit had been issued), and (ii) a fence encroached over the front property line.
- The sellers later obtained the pool certificate of occupancy and addressed the fence encroachment, and ultimately sold the property to a third party for less than the contract price.

## Issues

1. Whether the buyer’s pre-closing, nonspecific rejection of title and demand for the deposit constituted an anticipatory breach.
2. Whether the asserted defects were readily curable, requiring timely, specific objections and an opportunity for the sellers to cure.
3. Whether a buyer may recover a down payment without tender of performance when alleged title defects are curable and the buyer failed to make a proper, timely demand to cure.

## Decision

- The Court of Appeals of New York affirmed judgment for the sellers.
- The buyer’s advance rejection of title based on unspecified “illegality,” coupled with a demand for return of the deposit, was an anticipatory repudiation of the contract.
- The pool certificate-of-occupancy issue and fence encroachment were readily curable conditions, not incurable title defects.
- Because the buyer neither tendered performance nor made timely, specific objections and demanded cure within a reasonable time, the buyer could not place the sellers in default or recover the deposit.
- The sellers were entitled to relief on their counterclaim for the buyer’s breach, including damages associated with the lower resale price.

## Legal Principles

- A buyer may recover payments without tender only where the seller’s title is incurably defective; where defects can be cleared without difficulty in a reasonable time, the buyer must tender (or be ready to tender) and make a demand sufficient to put the seller in default.
- For curable defects, the buyer must state specific objections in a timely manner and allow a reasonable opportunity to cure before treating the contract as terminated.
- A buyer’s categorical, pre-closing rejection of title and demand for return of the deposit can be anticipatory repudiation, excusing the seller from making a closing-date tender.

## Conclusion

The court held that the buyer’s vague pre-closing rejection was an anticipatory breach and that, because the alleged defects were curable, the buyer could not recover the down payment without timely specific objections, a reasonable opportunity to cure, and appropriate tender or demand placing the sellers in default.


Cohen v. Kranz, 12 N.Y.2d 242 (N.Y. 1963)