## Facts

- On February 18, 2007, Paul and Teresa Donovan agreed in a written offer to purchase to buy a home from Terry and Vicki Vohs for $550,000.
- The offer included a seller’s contingency stating the purchase was “subject to sellers obtaining home of their choice on or before February 20, 2007.”
- At the time of contracting, the Vohses had already made a counteroffer to purchase another home; that counteroffer required acceptance by February 19, 2007.
- The counteroffer for the replacement home was accepted on February 19, 2007.
- The Vohses’ broker informed the Donovans that the counteroffer had been accepted.
- The Donovans did not go forward with the purchase of the Vohses’ home.
- The Vohses later sold the home to another buyer for less and sued the Donovans for breach of contract, seeking damages of roughly $50,000.
- The Donovans moved for summary judgment, arguing the “home of their choice” contingency made the contract indefinite and the sellers’ promise illusory.
- The circuit court granted summary judgment for the Donovans, and the Vohses appealed.

## Issues

1. Whether the offer to purchase was unenforceable as a matter of law because the contingency “subject to sellers obtaining home of their choice on or before February 20, 2007” was too indefinite.
2. Whether the contingency made the sellers’ promise illusory by leaving performance within the sellers’ unfettered control.
3. Whether these enforceability questions could be decided on summary judgment given the surrounding facts and available extrinsic evidence.

## Decision

- The Wisconsin Court of Appeals (District IV) reversed the circuit court’s summary judgment and remanded for further proceedings.
- The court held that, viewing the record and reasonable inferences in the sellers’ favor, the “home of their choice” contingency was not so indefinite that the contract was unenforceable as a matter of law.
- The court concluded that the contingency could reasonably be understood, in context and with extrinsic evidence, to refer to a specific replacement-home transaction already in progress and subject to a short deadline.
- The court also held the sellers’ promise was not illusory as a matter of law because satisfaction of the contingency depended in significant part on a third party’s acceptance of the sellers’ counteroffer, not solely on the sellers’ later choice.
- Because reasonable factfinders could differ on contract meaning and enforceability under the evidence, summary judgment for the buyers was improper.

## Legal Principles

- Contract language that appears vague in isolation may be sufficiently definite when interpreted in light of the parties’ situation and other admissible evidence of context.
- A short, fixed deadline for satisfying a real-estate contingency can support an inference that the parties tied the condition to an identified, time-sensitive transaction rather than an open-ended condition.
- A promise conditioned on an event is not illusory when the event is not entirely within the promisor’s control, such as when fulfillment depends on the decision of a third party.
- Summary judgment is not appropriate when the evidentiary record permits competing reasonable inferences about the meaning or legal effect of a contractual term.

## Conclusion

In Vohs v. Donovan, the Wisconsin Court of Appeals reversed summary judgment for the buyers, holding that the sellers’ “home of their choice” contingency was not unenforceable as a matter of law on indefiniteness or illusory-promise grounds, because the surrounding facts and extrinsic evidence could support a reasonable reading that the condition referred to a specific, pending replacement-home deal and depended on third-party acceptance, requiring further proceedings.


Vohs v. Donovan, 777 N.W.2d 915 (2009)