FACTS: A licensee, representing himself as a buyer, submitted an offer on Thursday to purchase seller’s property. The seller sent a Counteroffer to the buyer on Friday. The buyer then emailed the listing agent, stating he was going out of town on a camping trip, and therefore could not sign the Counteroffer, but asked if his email could serve as his acceptance.

The listing agent did not respond to the email. The seller continued to receive offers from other buyers.

On Saturday, the listing agent emailed the buyer notifying him that other offers were being received and that she needed to hear back from him regarding whether he was going to send over the signed Counteroffer.

On Monday, the buyer was back in town and tried to open escrow, insisting he had a contract because he accepted the Counter Offer by email.

ISSUE: Does the buyer have a contract with the seller?

ANSWER: No.

DISCUSSION:         

The Statute of Frauds holds that a contract for the sale of real property must be in writing and signed by the party to be charged to be enforceable. A.R.S. §44-101(6).

Lines 25-27 of the Counteroffer state:

Terms of Acceptance: Unless acceptance of this Counteroffer is signed by all parties and a signed copy delivered in person, by mail, facsimile or electronically, and received by the originating party’s Broker named in Contract Section 8q or 9a as applicable by … this Counteroffer shall be considered withdrawn. (emphasis added)

Therefore, because the buyer did not deliver a signed copy of the Counteroffer to the listing broker within the specified time, a contract was never formed.