Law School Discussion

I would have to agree with joshdelight.

In this instance, the advertisement served as an announcement that the Corvette was for sale, and the asking price was $6000.

The ad led to Mary calling Jane and making the offer of $6000 for the car, to be paid that same night (setting a time limit), which Jane accepted.  Mary could have offered $3000 or $10,000 or whatever amount that she thought reasonable, and Jane would have had the option of accepting or rejecting the offer. Jane could also have changed her mind and decided to not sell the car or hedged and hoped for a better offer or changed the price, and Mary would have the option of making that offer.

If Mary did not perform by arriving the same night with the $6000 as agreed upon, Mary would have been in breach, and Jane would then have right of recourse, or to release Mary from the contract and to sell the car to someone else the next day.

It does seem that the buyer's obligation to perform depends wholely on his ability to perform. The contract states 'cannot' and not 'will not.'
However, it is not stated that his ability to perform depends solely upon his ability to raise the funds for the purchase. The buyer's ability to perform might depend upon other unexpected occurances which could affect his ability to perform on any pre-determined date of performance.

Since there is not shown any circumstances that the seller could refuse to perform, it would also seem that the seller is in breach. However, the seller could argue that his refusal is the reason that the buyer cannot make settlement, in which case the buyer is not liable and would be entitled to the refund of his money.