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Mutual Consideration

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Submitted By tj544
Words 343
Pages 2
TO: Reader

From: Josh Thrasher

Date: October 8, 2014

Re: Bernie v Vivian, Mutuality of Consideration under VA law

Facts:

On February 1, Bernie, who lives in Richmond, VA, put an ad in his local newspaper advertising his 2006 Ford Fusion for sale at the asking price of $13,500. On March 1, Vivian calls and offers to purchase the vehicle for $12,000. Bernie invites Vivian to meet on March 5, to complete the negotiation and transaction. Vivian shows up at Bernie's house on March 10, and after some negotiation, she tells him that she will pay $12,500 for the car but will need three more weeks to raise the money. Bernie agrees to wait, but only if Vivian puts down a $1000 deposit. Vivian agrees and Bernie drafts one page agreement. Bernie wants to keep his options open so he puts the following language into the agreement.

Bernie agrees to sale his 2006 Ford Fusion to Vivian for $12,500 and Vivian agrees to purchase the same vehicle for such price.
The transaction shall take place no later than March 31.
In the event that the seller breaches this agreement, the seller must refund the purchaser's deposit, but the parties shall be limited to this remedy and only this remedy.
In the event that the buyer breaches this agreement, the seller may keep the buyer's deposit, but the seller shall be limited to this remedy and only this remedy.

Vivian reads and signs the agreement, and gives Bernie a $1000 check. Two weeks later, on March 24, Vivian calls and tells Bernie that she is pulling out of the deal. Bernie tells her that's fine, but that he is keeping the deposit in accordance with our agreement. Vivian sues for her $1000 deposit back, claiming there was no mutuality of consideration and the contract is therefore void.

The issue in this case is weather or not, under Virginia law, can Vivian can sue Bernie for her deposit back, claiming no

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