Relevant Facts
Bernie placed an ad in his local newspaper advertising his 2006 Ford Fusion for sale for $13,500. Vivian calls him a few weeks later and offers to purchase the vehicle for $12,500. Bernie and Vivian enter into a contract on March 10th that states “Vivian shall buy the 2006 Ford Fusion for $12,500; the transaction shall take place no later than March 31. In the event that the seller breaches the agreement, the seller must refund the purchasers deposit, but the parties shall be limited to this remedy and only this remedy. In the event the buyer breaches the agreement, the seller may keep the buyers deposit, but the seller shall be limited to this remedy and only this remedy.” Vivian read and signed the contract and gave Bernie a check for $1000. Two weeks later Vivian is unable to come up with the funds to buy the car. On March 24th, she called Bernie to inform him that she is pulling out of the deal. Bernie lets her know he is keeping her deposit in accordance with their agreement. Vivian is claiming there was no mutuality of the contract and therefore it is void.
Issue Presented
The issue in this case is under applicable law in Virginia, is whether there was mutuality of consideration in Bernie and Vivian’s transaction.
Applicable Law
In Gay Nineties, Inc. v. International Dining Club, 21 Va. Cir. 492 (Va. Law & Eq. Ct. 1973),A dining club and a corporation entered into contract to provide goods and services for the members of the dining club in exchange for the corporation to have a membership with the dining club. The corporation filed suit to void the contract. The courts ruled there was mutuality of the contract, as each side provided consideration. “Where performance is offered and accepted by both parties, the necessary mutuality comes into existence even though it did not exist in the beginning. The offer to perform does not