ALLINGTON TOWERS NORTH, INC., A FLORIDA CORPORATION, APPELLANT,
v.
ANNETTE H. RUBIN, A/K/A ANNETTE RUBIN, APPELLEE
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A seller appealed a judgment awarding specific performance of a condo purchase agreement to a buyer who had secured an addendum granting an absolute right to cancel before closing. The Fourth District Court of Appeal reversed, finding the contract lacked the required mutuality of obligation and remedy because the seller was bound to convey while the buyer retained an unconditional cancellation right.
The contract is unenforceable due to lack of mutuality. Because the addendum granted the buyer an absolute right to cancel while binding the seller to convey the property with no corresponding right to enforce performance, the contract lacks the mutuality of obligation and remedy essential for specific performance.
[1] A contract provision granting a buyer the absolute and unfettered right to cancel at any time before closing renders the contract unenforceable for lack of mutuality of o…
[2] Failure of consideration is an appropriate defense when an addendum executed subsequent to the original contract renders one party's promise illusory.
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Join FLexlaw to unlock all legal intelligence“It is expressly agreed that the Buyer shall have the absolute and unfettered right to cancel and/or rescind said Purchase Agreement any time before closing, notwithstanding any contrary provisions in the Purchase Agreement.”
The addendum language at issue that gave the buyer unilateral cancellation rights
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Join FLexlaw to unlock all legal intelligenceThe parties entered into a binding purchase agreement for the sale of a condominium apartment. Subsequently, an addendum was added giving the buyer an…
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HERSEY, Judge.
Appellant, seller, appeals from a final judgment which determined that appellee was entitled to specific performance of a contract for the purchase and sale of a condominium apartment.
A purchase agreement, binding on all parties, was initially entered into. Thereafter an addendum was added as follows:
[I]t is expressly agreed that the Buyer shall have the absolute and unfettered right to cancel and/or rescind said Purchase Agreement any time before closing, notwithstanding any contrary provisions in the Purchase Agreement.
Various subsidiary issues are tendered by the record and the briefs but the crux of this case depends upon whether the written agreement, including this addendum, is unenforceable as lacking mutuality of obligation and mutuality of remedy.
A preliminary skirmish evolved out of appellant’s failure to specifically plead lack of mutuality as an affirmative defense but we determine that to be of no legal consequence for several reasons, any one of which would be sufficient to carry the day for appellant. First, failure of consideration was pled as an affirmative defense. This was a bilateral contract, executory as to both obligations. The seller promised to deed the property over and the buyer promised to pay for it. If either of those promises is illusory or unenforceable then there is no consideration for the other promise. The appropriate defense would be lack of consideration. Jenkins v. City Ice & Fuel Co., 118 Fla. 795, 160 So. 215 (1935). Here there is evidence that the addendum, which is alleged to make the purchaser’s promise illusory, was executed subsequent to execution of the contract. Thus the defense is appropriately referred to as failure of consideration. Second, the addendum was admitted into evidence without objec tion. Testimony referring to it and the consequent unenforceability of the contract against the purchaser also came in without objection. Only in final argument did appellee suggest that lack of mutuality was not properly in issue. Under the circumstances it would be appropriate to consider that the issue was impliedly tried by consent pursuant to Rule 1.190(b), Florida Rules of Civil Procedure. Third, mutuality of obligation and mutuality of remedy are essential elements of an enforceable contract and therefore, in order to obtain specific performance, mutuality must exist. Howard Cole & Co. v. Williams, 157 Fla. 851, 27 So. 2d 352 (1946). This court has also held that mutuality of obligation and remedy must exist for a specific performance suit to succeed. Burger Chef Systems, Inc. v. Burger Chef of Florida, Inc, 317 So. 2d 795 (Fla. 4th DCA 1975).
The result of engrafting the addendum provision onto the contract is to require the seller to convey if the purchaser decides to go forward. On the other hand it leaves the seller with no corresponding right to enforce a sale and closing. We cannot envision a clearer case of lack of mutuality.
Accordingly, we reverse the final judgment and remand this cause for the entry of a judgment for defendant, appellant.
REVERSED AND REMANDED.
BERANEK, J., and WARREN, LAMAR, Associate Judge, concur.
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Pick Kwik Food Stores, Inc. v. Tenser, 407 So. 2d 216 (Fla. 2d DCA 1981)…. v. Claiborne-Reno Co., 64 F. 2d 224 (8th Cir. 1933); Miami Coca-Cola Bottling Co. v. Orange Crush Co., 296 F. 693 (5th Cir. 1924); Jacob Schmidt Brewing Co. v. Minot Beverage Co., 93 F.Supp. 994 (D.N.D.1950); Allington Towers North, Inc. v. Rubin, 400 So. 2d 86, (Fla. 4th DCA 1981); I Williston on Contracts (3d Ed.) § 104 at 401. Other than to install equipment, maintain it in good repair, and carry liability insurance while the equipment remained on appellant’s premises, appellee had no express or implie…
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Ponce Dev. Co. v. Espino, 449 So. 2d 317 (Fla. 3d DCA 1984)…unenforceable against the Espinos. See Sanchez v. Crandon Wholesale Drug Co., 173 So. 2d 687 (Fla.1965), adopting Florida-Georgia Chemical Co. v. National Laboratories, Inc., 153 So. 2d 752 (Fla. 1st DCA 1963); Allington Towers North, Inc. v. Rubin, 400 So. 2d 86 (Fla. 4th DCA 1981). But when the contract became executed by the promisor’s full performance according to the terms of the contract — except as to transfer of title at a clo.sing, which final act was impeded by the promisee — the defect of lack of…1 / 2
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Off. Pavilion S. Fla., Inc. v. Asal Prods., Inc., 849 So. 2d 367 (Fla. 4th DCA 2003)…. 2d 37, 38 (Fla. 1st DCA 1968). In a contract where the parties exchange promises of performance, “[i]f either of those promises is illusory or unenforceable then there is no consideration for the other promise.” Allington Towers N., Inc. v. Rubin, 400 So. 2d 86, 87 (Fla. 4th DCA 1981). As stated by the Court of Appeals for the Eleventh Circuit applying Florida law: If, however, “one of the promises appears on its face to be so insubstantial as to impose no obligation at all on the promisor — who says, in…
Previewing 3 of 7 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Howard Cole & Co., Inc. v. Sallie Williams and Zibe Williams and Executor of the Last Will and Testament of F. H. Williams, 157 Fla. 851 (Fla. 1946)
- Jenkins v. The City Ice & Fuel Co., 118 Fla. 795 (Fla. 1935)
- Davis v. State, 317 So. 2d 795 (Fla. 1st DCA 1975)