ContractsCourt Rejected Argument That Contract’s "Best Efforts" Provision Was Unenforceable on the Grounds of Uncertainty and VaguenessSpecific Performance Is an Equitable Remedy for Breach of Contract, Rather Than a Separate Cause of ActionOption Did Not Violate the Rule Against Perpetuities
The plaintiffs planned to develop a mixed use development (project). The defendant owns real estate adjacent to the plaintiffs’ property. The plaintiffs had contracted to purchase the defendant’s unused air rights for $4.6 million and had placed a $460,000 down payment into escrow. The contract provided that the sale of the air rights would close, at the latest, on Dec. 26, 2012. Prior to the closing, the defendant had to obtain a "Waiver and Subordination" (waiver) within 30 days after execution of the contract, from the defendant’s lender (lender), which held the mortgage on the defendant’s property. The contract required the defendant "to use its ‘best efforts’ to obtain the Waiver." If the defendant failed to obtain the waiver, the contract gave the plaintiffs the right to seek the waiver from the lender. The contract also permitted the plaintiffs "to extend the Waiver Contingency Period as needed to obtain the Waiver." The contract specified that the plaintiffs could "unilaterally extend the closing date ‘from time to time, …in [their] sole discretion in which case the Closing, at [Plaintiffs'] election, shall be moved back day for day by the number of days’ necessary for the Plaintiffs to obtain the Waiver."
