Offers, Counteroffers, Conditions Precedent

A recent case out of Ohio, Sabatine BK Development v. Fitzpatrick Enterprises, Case No. 2016CA00116, is a nice case for offer-counteroffer problems as well as condition precedent situations. In the case, Sabatine sent a purchase offer to Fitzpatrick for a piece of land “as depicted on Exhibit A.” However, Sabatine never sent an Exhibit A. Fitzpatrick made his own Exhibit A and sent it to Sabatine along with some other changes. The court found that this was a counteroffer, not an acceptance. Fitzpatrick’s new Exhibit A was a material modification of Sabatine’s offer, which had contained no Exhibit A at all and therefore never defined the land that was being discussed. Sabatine needed to accept this counteroffer. However, Sabatine actually rejected the counteroffer. So there was never any contract. 

Alternatively, the parties were excused from performing because the contract contained a condition precedent that never occurred. The contract read that the contract was “subject to a mutually agreeable replat of the property.” “Subject to” is classic condition precedent language, and the parties never agreed on a replat of the property, so it was never fulfilled, and so neither of the parties had to perform.