In this case the unsuccessful Seller argued that the Buyer introduced by the Agent was not prepared to unconditionally exchange contracts. The Agent’s response was that the signed agency agreement stated that a buyer was ‘ready, willing and able’ if they were prepared and able to unconditionally exchange contracts, which they considered the Buyer was.
To support her argument, the Seller produced a letter from the Buyer’s solicitor to her solicitor in which enquiries were raised about access to the property and the title deeds. These were clearly pre-contract enquiries and as such did not suggest that at that time the Buyer was willing to exchange unconditional contracts for the purchase of the property. Seven days later the Seller’s solicitor sent a fax to the Buyer’s solicitor stating that their
client was withdrawing from the sale. No other solicitor records were provided, however, the Agent’s file recorded that, having been informed that the Seller was not prepared to reply to the enquiries raised, the Buyer intended to bypass the reply (deciding that it was acceptable to her) and was, allegedly, in the process of forwarding monies to her solicitor for completion when the Seller’s solicitor’s fax was received.
The evidence brought into focus the question of whether and precisely when the Buyer became a ‘ready, willing and able’ purchaser. I took the view that, in the absence of completed solicitors’ notes and a direct account with precise details from the proposed buyer, I was unable to come to a judgement with any confidence on whether a commission fee was contractually due.
The use of ‘ready, willing and able’ clauses in agency agreements requires both the agent and the seller to agree that a buyer introduced meets that definition for an uncontested commission fee to be charged. Disputes will arise following abortive transactions if both parties do not share the same view.