Two Offers, One Counter, and a Congratulatory Text
Seller lists at $380,000 and has two written offers. Offer A: $390,000, 30-day close, 21-day appraisal and financing contingencies, $5,000 earnest money, expiration Friday 5 p.m. Offer B: $372,000 cash, 14-day close, $20,000 earnest money, expiration Thursday noon. On Wednesday the seller signs a counter to A at $400,000 with a 21-day close, states 'response required within 24 hours,' and emails it at 4:50 p.m. A's buyer responds Monday: 'We accept the $400,000.' On Thursday at 10 a.m. the seller tells B's agent by phone, 'We'll take the $372,000 cash if A falls apart,' and B's buyer mails a signed offer that afternoon. Wednesday night the seller texted A's agent, 'Congrats, we have a deal at 400.'
1. What is the status of the counteroffer to Buyer A, and is Monday's acceptance effective?
Read the worked answer
The original offer died on Wednesday; Monday's acceptance is too late to be an acceptance.
- A counteroffer operates as a rejection and terminates the original offer. Offer A at $390,000 was off the table the moment the seller countered at $400,000.
- The counter was open only for the stated window. If the 24 hours runs from receipt, it lapsed Thursday around 4:50 p.m.; the prompt does not say which method controls, so read the counter's own delivery language.
- Monday's 'we accept' is therefore a new offer at $400,000 that the seller may accept, reject, or ignore (no duty to respond, but a duty not to mislead). Land contracts must be in writing and signed by the party to be charged, so nothing is binding until the seller signs an acceptance.
- The Wednesday night text is a problem. The seller cannot accept his own offer, but 'congrats, we have a deal at 400' can be argued as a representation of a deal, possible waiver of the deadline, or estoppel. It is not a contract; it is evidence that may cost the seller leverage or invite a claim.
Rule to teach: counters are rejections, deadlines are real, and congratulations should wait for signed acceptance.
2. Does the seller have a contract with Buyer B, and what does the phone statement do?
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No contract with B yet, and the phone statement is not enforceable.
- A contract for the sale of land must be in writing and signed by the party to be charged. A verbal 'we'll take it' creates no obligation on either side.
- B's mailed signed offer is only an offer. Acceptance by mail is effective on dispatch only where the offer invites or authorizes that method; here there is no offer from the seller to accept.
- The seller remains free to sign B's written offer or to accept A's new $400,000 offer. The risk is not contract formation; it is the inconsistent signals to B's agent, which can support a misrepresentation or bad-faith claim and a license complaint.
Practical fix: if the seller wants B as a fallback, put it in a written backup contract, not in a phone call.
3. How should the agent structure the competing positions from here?
Read the worked answer
Tighten the process in writing.
- Use written counteroffers with a clear expiration time, delivery method (email/text/fax), and a statement that time is of the essence.
- If the seller wishes to withdraw a counter, send a written revocation before acceptance.
- If a backup is wanted, use a written backup contract expressly contingent on the failure of the primary contract through a stated date, with its own earnest money and clear return/termination terms, and language stating the seller may continue to negotiate and accept other offers.
- Be truthful with every party about the existence of other offers without disclosing their terms; never tell B it is the only offer when it is not.
- Confirm the earnest money handling for whichever contract is signed, and remind the seller that a text is not a signature.
Bottom line: the seller probably still owns the decision on both offers, but the file is now a credibility problem unless the agent reduces everything to signed writings.