## Facts

- James M. Berrini owned commercial real estate in Milford, Massachusetts, and listed it for sale through broker David R. Consigli.
- Jeffrey Germagian, an experienced real estate broker, sent Berrini a standard offer-to-purchase form offering $219,000.
- The offer contemplated execution of a later purchase-and-sale (P&S) agreement by October 21, 1997; it stated “time is of the essence” and set a closing date of December 31, 1997 (later modified by Berrini to “on or before” that date).
- The offer was subject to contingencies, including zoning-related variances affecting area/frontage/width/access and financing for 50% of the price.
- Berrini signed the offer and initialed the “on or before” closing-date insertion; Germagian did not initial that change.
- Germagian did not apply for financing or begin obtaining the required variances and curb-cut permit, stating he would not incur those costs without a signed P&S agreement.
- The parties, through counsel, negotiated over P&S terms after it became clear no P&S would be executed by October 21; Germagian sought to extend the closing date, and Berrini refused.
- In November 1997, Berrini returned the property to the market and later sold it to trustees of Whitewood Realty Trust (the Silvas); the sale closed on December 29, 1997.
- Germagian sued for specific performance, breach-of-contract damages, and related claims including Mass. Gen. Laws ch. 93A; the trial court granted summary judgment for defendants.

## Issues

1. Whether the signed offer-to-purchase document constituted a present, enforceable contract for the sale of the property or only a preliminary step toward a later P&S agreement.
2. If enforceable, whether Germagian could obtain specific performance or damages despite failing to show readiness and ability to perform by the stated closing date.
3. Whether defendants’ conduct amounted to an unfair or deceptive act or practice under Mass. Gen. Laws ch. 93A.

## Decision

- The Massachusetts Appeals Court affirmed summary judgment for all defendants.
- The court held the offer to purchase was not a final, binding contract of sale but a preliminary agreement anticipating a later P&S.
- The court held Germagian was not entitled to specific performance or breach damages because there was no enforceable contract, and he also failed to show he was ready, willing, and able to close by the required date.
- The court rejected the ch. 93A claim because, on these facts, defendants’ conduct was not unfair or deceptive in the absence of a binding obligation to sell to Germagian.

## Legal Principles

- Whether an offer-to-purchase form creates a binding real estate sales contract turns on the parties’ intent as shown by the document’s terms and the parties’ conduct.
- An offer that expressly calls for a later P&S agreement, coupled with continued negotiations over material terms, supports treating the offer as a nonbinding preliminary agreement.
- Multiple contingencies (e.g., zoning variances, permits, financing) may indicate that essential obligations remain unsettled, weighing against contract finality.
- A party seeking specific performance must show readiness, willingness, and ability to perform as required, especially where the agreement makes time of the essence.
- Where there is no enforceable contract and no actionable breach, related ch. 93A claims premised on the same transaction generally fail.

## Conclusion

The court affirmed summary judgment because the signed offer to purchase was a preliminary instrument anticipating a later purchase-and-sale agreement and did not bind the seller to convey; additionally, the buyer did not demonstrate readiness to satisfy financing and permitting conditions by the time-of-the-essence closing date, defeating contract and ch. 93A theories.


Germagian v. Berrini, 60 Mass. App. Ct. 456, 803 N.E.2d 354 (2004)