Luttinger v. Rosen

The Facts

P Luttinger, buyer, contracted with D Rosen, seller to purchase a dwelling.  P’s attorney wrote a contract with a very specific “subject to” condition precedent. The P was not able to fulfill the exact condition precedent, so they asked D for full refund of their deposit, per the terms of the written contract. D refused. P filed suit, claiming they had a right to cancel and were owed the full refund.

Procedural History

P sued D for breach of contract. Trial court found for P and said they were entitled to recover the full deposit refund. D appealed.

The Issue

Was a condition precedent met that would require performance and make this contract enforceable? No, in this case, the condition precedent was not met (because due diligence was satisfied), so this contract is not enforceable.

The Rule

To satisfy due diligence, the law does not require performance of a futile act.

The Holding / Disposition

Held? Yes. The CT Supreme Court held for P. No duty to undertake a futile act. Condition precedent not met. Also, the subsequent offer was irrelevant, so no error in excluding that related testimony.

Court’s Reasoning

This was a very clear cut case where the court applied precedent of common law that clearly did not require the P to look elsewhere for a loan to satisfy due diligence in order to meet the terms of the condition precedent. The terms of the contract and condition precedent were so specific that it would not have mattered if this was a $5,000 dwelling or a $5,000,000 dwelling – due diligence was met.

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