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Kanavos v. Hancock Bank & Tr. Co. - 395 Mass. 199, 479 N.E.2d 168 (1985)


It is the general rule that when performance under a contract is concurrent, one party cannot put the other in default unless he is ready, able, and willing to perform and has manifested this by some offer of performance although a tender of performance is not necessary if the other party has shown that he cannot or will not perform. 


Defendant gave plaintiff the right to acquire all the stock in an apartment complex before defendant would sell the stock to anyone else on the same terms and the option to match the price of sale of said property to extend for a 60-day period from the time an offer was received. Defendant entered into a purchase and sale agreement to sell the stock to a third person without giving plaintiff notice and the opportunity to purchase the stock. The plaintiff filed suit and the trial court imposed liability upon defendant for failing to give plaintiff proper notice of defendant's intent to sell to a third party stock that plaintiff held an option to purchase. Defendant appealed.


Did the trial court properly instruct the jury that plaintiff's right to recover for breach of an option contract required plaintiff to show that he was ready, willing, and able to purchase the stock during the option period?




The court determined that plaintiff must prove his ability to perform his concurrent obligations under the option contract and show his ability to finance the purchase of the stock. His ability to do so was an essential part of establishing defendant's liability. The case was remanded for a retrial because the question of plaintiff's ability to purchase the stock should have been submitted to the jury. Particularly whether plaintiff had been given proper notice of his right to purchase the stock that he held an option to buy, and that he would have been ready, willing, and able to do so during the option period.

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