The Text That Was Not an Acceptance
Buyer's agent Nina submits an offer on a Sparks duplex Monday at 9:00 a.m. with a written expiration of Tuesday at 5:00 p.m. Tuesday at 4:50 p.m. the seller's agent texts Nina: 'Seller accepts, will sign in the morning.' Nina tells her buyer it is accepted; the buyer orders inspections that evening and pays $650. Wednesday at 9:00 a.m. the seller signs and the listing agent emails a signed document that changes the closing date by ten days and adds a $5,000 earnest money deposit due in two business days. Meanwhile a second buyer submitted an offer Tuesday at noon, which the listing agent acknowledged in writing as 'received and held as a backup.'
1. Was there a contract at 4:50 p.m. Tuesday?
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No. Acceptance must be communicated by the offeree, in the manner the offer requires, and it must be the mirror of the offer.
Three defects here:
- The text is not an acceptance. It is a statement of future intent ('will sign in the morning'). A promise to accept later is not acceptance.
- It came from the agent, not necessarily with authority to bind. Even if the listing agent had authority, an unsigned, hedged message does not satisfy the offer's written-acceptance terms.
- The offer expired. The offer lapsed at 5:00 p.m. Tuesday by its own terms. Once it expired, the seller could no longer accept it; anything the seller signs afterward is a new proposal.
Nina's practical error: reporting acceptance to her buyer before she held a signed, delivered acceptance. That is the kind of statement that creates a reliance claim, and it converts a routine lapse into a complaint. Licensees should never characterize a deal as accepted until the signed document is in hand.
2. What is the legal effect of Wednesday's signed document, and is the buyer bound?
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It is a counteroffer, not an acceptance. It changes the closing date and adds an earnest money obligation, so it does not mirror the original offer even if the original offer were still open. And because the original offer expired Tuesday at 5:00 p.m., the seller had nothing left to accept.
A counteroffer operates as a rejection of the prior offer and puts a new offer on the table from the seller. The buyer is free to accept, reject, or counter, and is bound to nothing until the buyer signs and delivers acceptance of that new proposal.
The buyer's $650 inspection order was placed on the strength of an oral statement. With no contract, there is no breach claim against the seller. The buyer's realistic theory, if any, is against the agent who misreported the status of the deal; whether that theory pays depends on the facts and on the buyer's own decision to act before verification. The clean lesson: the agent's text did not transfer any risk to the seller, and 'the agent said it was accepted' does not create a contract.
3. What is the status of the second buyer's offer, and what should the listing agent do now?
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The second buyer's offer was acknowledged as 'held as a backup.' Since the first offer lapsed without a contract ever forming, the backup condition was never triggered by a failed primary contract, because there was no primary contract.
What the listing agent should do:
- Confirm in writing to the seller that no binding contract exists with buyer one.
- Review the exact language of the second offer: is it a firm offer still within its own expiration, or is it expressly contingent on the first deal falling through? If it is firm and still open, the seller may accept it. If it is truly conditional, the seller should go back to that buyer in writing to convert it into a live offer rather than assuming it can be accepted.
- Notify buyer one in writing that no contract was formed, so the buyer stops spending money.
- Document every communication, including the 4:50 p.m. text, because it is now evidence in a potential complaint.
Oral enthusiasm from an agent is not a contract, and the seller remains free to sell to someone else until a signed acceptance is delivered.