Gregory Hayward v. Bernadette McCaffrey.

• Court: Massachusetts Appeals Court
• Decided: May 7, 2025
• Docket: 24-P-0587
• Status: Unpublished

Opinion

NOTICE: Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule 23.0, as appearing in 97 Mass. App. Ct. 1017 (2020) (formerly known as rule 1:28, as amended by 73 Mass. App. Ct. 1001 [2009]), are primarily directed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, such decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 23.0 or rule 1:28 issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260 n.4 (2008).

COMMONWEALTH OF MASSACHUSETTS

APPEALS COURT

24-P-587

GREGORY HAYWARD

vs.

BERNADETTE MCCAFFREY.

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

The plaintiff, Gregory Hayward, appeals from a Superior

Court summary judgment dismissing his complaint for specific

performance of what he asserted was a contract for the sale of

real estate to him by the defendant, Bernadette McCaffrey. The

judge concluded that although the parties entered a written

agreement on a standard form offer to purchase real estate

(OTP), an addendum to the OTP rendered it nonbinding. We agree

and therefore affirm the judgment.

The addendum stated in relevant part,

"The purpose of this document is to memorialize certain business points[.] [T]he parties mutually acknowledge that their agreement is qualified and that they, therefore, contemplate the drafting and execution of a more detailed agreement. They intend to be bound only by the execution of such an agreement and not by this preliminary document." This is the precise language identified in Goren v. Royal Invs.,

Inc., 25 Mass. App. Ct. 137, 143 (1987), as sufficient to

prevent an OTP from becoming binding even if it otherwise

includes the requisite material terms. The Supreme Judicial

Court has likewise stated, in another OTP case, that "[i]f

parties do not intend to be bound by a preliminary agreement

until the execution of a more formal document, they should

employ language such as that suggested" in Goren. McCarthy v.

Tobin, 429 Mass. 84, 88 n.3 (1999).

That the form OTP here included a heading labeling it a

"[b]inding [c]ontract," cannot control over the specific

language in the addendum declaring the parties' intention not to

be bound. Contrast McCarthy, 429 Mass. at 87-88 (notice printed

on form, stating that OTP "create[d] binding obligations,"

bolstered inference that parties intended to be bound). The

addendum, as is evident from the other matters addressed in it,

was prepared for the specific purpose of this OTP, and Hayward

signed the addendum itself, as well as the OTP form.

"[S]pecific terms and exact terms are given greater weight than

general language." Kobico, Inc. v. Pipe, 44 Mass. App. Ct. 103,

108 (1997), quoting Restatement (Second) of Contracts § 203(c)

(1981) (Restatement). And "separately negotiated or added terms

are given greater weight than standardized terms or other terms

not separately negotiated." Restatement § 203(c).

2 Hayward's reliance on the implied covenant of good faith

and fair dealing is unavailing. That covenant "is implied in

every contract." Uno Restaurants, Inc. v. Boston Kenmore Realty

Corp., 441 Mass. 376, 385 (2004). Here, however, the addendum

prevented formation of a contract. Thus, there could be no

implied covenant.

Hayward poses a rhetorical question: if the OTP "carried

no legal weight, why sign it at all, and why sign it under a

time deadline?" But the court in Goren recognized that "[t]here

is commercial utility to allowing persons to hug before they

marry." Goren, 25 Mass. App. Ct. at 142, citing Tull v. Mister

Donut Dev. Corp., 7 Mass. App. Ct. 626, 631-632 (1979). See

Restatement § 21 comment b. Hayward offers no reason to revisit

or disregard these authorities.

Hayward suggests that giving effect to the addendum would

[a]llow[] the [s]eller to void the contract while binding the

[b]uyer." But there is no such asymmetry; the language of the

addendum clearly states that neither party intends to be bound.

Hayward also asserts that giving effect to the addendum "would

effectively render nearly all residential real estate offers

meaningless." Hayward cites to no evidence that the use of such

language is widespread. But even if it were, he offers no

reason why parties to OTPs should not be able to limit their

exposure in this manner. "If '[p]arties to what would otherwise

3 be a bargain and a contract . . . agree that their legal

relations are not to be affected [,] [i]n the absence of any

invalidating cause, such a term is respected by the law like any

other term.'" Goren, 25 Mass. App. Ct. at 142, quoting

Restatement § 21 comment b.

Because this case is governed by the addendum language

suggested in Goren, 25 Mass. App. Ct. at 143, and ratified by

McCarthy, 429 Mass. at 88 n.3, we need not address the judge's

partial reliance on Walsh v. Morrissey, 63 Mass. App. Ct. 916

(2005), in which the OTP did not contain such language.

Likewise, we need not address McCaffrey's argument for

affirmance on the alternative ground that the OTP was not

accepted in the exact manner its terms required. The limited

4 record before us does not clearly establish the absence of a

dispute of material fact on that point.

Judgment affirmed.

By the Court (Desmond, Sacks & Brennan, JJ. 1),

Clerk

Entered: May 7, 2025.

1 The panelists are listed in order of seniority.