Section 4

Citation: Section 4
Parent Document: Solomon v. Birger, 477 N.E.2d 137 (1985)
Jurisdiction: Massachusetts (state)
Effective Date: 1985-04-22
Original Source: https://www.courtlistener.com/opinion/2048661/solomon-v-birger/ ↗

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As a general rule the contractual duties of a seller of land are discharged by the buyer’s acceptance of a deed. However, “there is an exception to the effect that promises in the original agreement which are additional or collateral to the main promise to convey the land and are not inconsistent with the deed as given are not necessarily merged in the deed, but may survive it and be enforced after the deed is given.” McMahon v. M & D Builders, Inc., 360 Mass. at 59, quoting from Pybus v. Grasso, 317 Mass. 716, 717 (1945). See also Rouse v. Brooks, 66 Ill. App.3d 107, 110 (1978). In McMahon, the buyers sought to rescind a transaction because of false oral representations as to the quality of a nearly completed new house. The standard form purchase and sale agreement contained a provision that “[t]he acceptance of a deed by the Buyer shall be deemed to be a full performance and discharge hereof’ (emphasis deleted). Ibid. This language was held “applicable only to the title . . . which was to be conveyed, and ... the plaintiffs’ acceptance of the deed operated as a merger or waiver only to the extent of precluding any claim that the title . . . did not satisfy the requirements of the agreement.” Id. at 60.3

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