## Facts

- A property owner authorized Nantucket real estate brokers to show and market her property on a nonexclusive basis; no commission was discussed, though the customary local rate was 5%.
- The brokers procured a prospective buyer who made a written offer; the seller countered at a higher price with a specified closing date.
- The buyer orally accepted the counteroffer, and the broker prepared a purchase-and-sale agreement.
- The buyer signed the agreement and delivered a 10% deposit to the brokers; the seller later signed the agreement after attorney review and received the deposit.
- The agreement stated that a 5% broker’s commission “on the said sale” would be paid by the seller to the brokerage.
- The seller later signed a 15-day extension of the closing date; the buyer did not sign the extension.
- On the scheduled closing date, the seller appeared ready to convey title, but the buyer failed to appear and refused to proceed.
- The seller retained the deposit and did not sue the buyer to enforce the contract or recover damages.
- The brokers demanded the 5% commission; the seller refused, asserting that no commission was earned because no sale occurred.
- The trial court, on stipulated facts, awarded the brokers the full commission; the seller appealed.

## Issues

1. Whether a broker is entitled to a commission when a buyer signs a binding purchase-and-sale agreement but defaults before closing, where the seller is ready to perform and does not cause the failure to close.
2. Whether contract language requiring a commission “on the said sale” makes consummation of the transaction a condition precedent to the broker’s right to payment.

## Decision

- Judgment for the seller; the trial court’s award to the brokers was reversed.
- The court held the brokers did not earn a commission because the transaction did not close and the seller did not wrongfully prevent completion.
- The seller’s retention of the buyer’s deposit did not create an obligation to pay the commission absent a completed sale or seller fault.

## Legal Principles

- A real estate broker generally earns a commission only if:
  - the broker produces a purchaser ready, willing, and able to buy on the seller’s terms;
  - the purchaser enters into a binding contract with the seller; and
  - the purchaser completes the transaction by closing title as required, unless completion fails due to the seller’s wrongful act or interference.
- When the sale fails because of the buyer’s default and the seller is willing and able to perform, no commission is due absent an agreement to the contrary.
- Contract wording tying the commission to “the sale” may be construed to condition payment on consummation (transfer of title), not merely execution of a purchase-and-sale agreement.

## Conclusion

The court denied the brokers a commission because the buyer defaulted before closing and the seller was not responsible for the failure to complete the transaction; under Massachusetts law and the commission clause, closing was required unless the seller wrongfully prevented completion.


Tristram's Landing, Inc. v. Wait, 367 Mass. 622, 327 N.E.2d 727 (1975)