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QUESTION:If you fax a purchase agreement to a Seller’s agent, when is it a binding acceptable agreement?  What if your buyer wants to cancel the offer?

The Laws

When it comes to a written purchase agreement, it is binding and enforceable when it is in writing and signed by all parties to the contract.

Counter Offers

Most courts have not ruled on the issue of faxed purchase agreements. The issue, however, can be analyzed through a review of basic contract law. A binding contract arises when one party makes an offer and the other party accepts that offer. A reply to an offer that purports to accept it, but when based on conditions added by the offering parties or assent to additional or different terms, is a counteroffer, not an acceptance.

The Fax Facts

To the extent that a faxed copy of a purchase agreement is an accurate reflection of the agreement of the parties and all parties have indicated their acceptance of the terms by signing the agreement, the faxed copy, in a legal opinion, it would be held to be an enforceable contract under many States contract laws. Listed below are the legal influences:

Faxing being a common business practice.

Real Estate uses faxed purchase agreements regularly.

When is a Faxed Contract Binding?

A contract is generally binding when signed by all parties to the agreement, and acceptance is communicated to the offeror or his agent. However, the issue gets more complicated if a party seeks to withdraw an offer before it is accepted. If withdrawal of the offer is communicated to the offeree or his agent prior to communication of acceptance, the offer can no longer be accepted. The question is when is the offeree's acceptance deemed communicated to the offeror. What is permissible generally is dictated by the method used in offer submitting. That is, if a buyer makes an offer by mail, the buyer is implicitly authorizing the seller to accept the offer by mail. Most state laws dictate if an offer is made by mail, the contract is complete when acceptance of the offer is deposited in the mailbox. The acceptance does not have to be received; it only has to be mailed!  The same rules apply to a faxed offer. However, a faxed acceptance, made in response, would most likely be enforceable upon receipt. While it could be argued that a fax received after business hours was received and enforceable directly after transmittal, a court could rule that transmittals during business hours are the only ones enforceable. The best approach is to assume a faxed acceptance or withdrawal is effective on receipt only during business hours.

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Information provided by this website is general and is not a substitute for professional advice. Please consult your investment advisor and/or attorney before entering into any transaction.

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