Luttinger v. Rosen


164 Conn. 45 (1972)

One-Sentence Takeaway

A contract that conditions right of performance on a condition precedent is not enforceable if that condition precedent is not fulfilled.

Facts

The plaintiffs contracted to purchase for $85,000 a single-family dwelling from the defendants and paid a deposit of $8500. The contract was subject to the plaintiffs’ being able to obtain mortgage financing at an interest rate not to exceed 8 1/2 percent. The lending institution to which the plaintiffs applied made a mortgage commitment at a rate higher than 8 1/2 percent. The plaintiffs gave timely notice to the defendants and demanded return of their down payment. Thereafter, the defendants offered to make up the difference between the interest rate offered by the lending institution and the rate provided in the contract. The plaintiffs rejected the offer.

Holding

Since the law does not require the performance of a futile act and since the plaintiffs’ attorney knew that better mortgage terms could not be obtained elsewhere, the trial court correctly concluded that the plaintiffs, even though they applied to one institution only, used due diligence in seeking mortgage financing in accordance with the contract provisions. Therefore, the trial court could reasonably have determined that the mortgage contingency clause of the contract, a condition precedent, had not been met and that, notwithstanding the defendants’ additional offer, the plaintiffs were entitled to a refund of their deposit.

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