Verbal Negotiating and Murphy’s Law

“Anything that can go wrong, will go wrong.” -Murphy’s Law


I don’t buy Murphy’s Law completely. A nearly infinite amount of bad stuff is not happening every moment. Think about that. Nevertheless, it pays to expect the unexpected in real estate transactions, and whenever possible to shrink the amount of time things can go wrong.

We recently received an offer on a Tacoma home listing. Our seller counter-offered. Buyer countered back verbally. That is a key detail because of the way our contracts are drafted. Their response was not in writing and not signed, which meant we could talk all we wanted and reach an understanding, but without a signed contract in force Murphy’s Law was free to come into play, which it did shortly after arriving at an acceptable set of terms.

It took a couple of days to circulate the contract paperwork. Meanwhile a better offer came in. Great news for my seller, but cringe-inducing since buyer #1 and their agent were mentally past negotiations. They had already scheduled the home inspection. This would be jolting news. I let the agent know about the competing offer.

“But we already had a deal!” she said. I replied that it was not signed, that we had a duty to present the second offer, and that in my opinion there was not a binding contract so the sellers could potentially accept it. She felt my sellers should honor what they said they were willing to sign, from an ethical standpoint. To be thorough, I consulted our Managing Broker who called an attorney. They confirmed there was no contract. Seller was free to decide.

This illustrates one way verbal negotiations can go wrong: You might think you have a deal but until it is in writing you may have nothing. Also, talk carries the potential for misunderstanding. In the game “Telephone” a phrase is passed in whispers from player to player. The last player repeats the phrase out loud where it is compared with the original. The two phrases are typically very different. What might have started out “John jumped the stone wall” might become “Sea monkey stole my money”. A similar thing can happen with contract negotiations which generally involve two intermediary agents.

Although there are instances where negotiating verbally is quite useful, in this case it led to frustration. Fortunately, there is a happy ending. The seller did feel they had negotiated a deal they could feel good about and decided to proceed into a written contract with buyer #1. We are told the buyer cried tears of joy when they heard.

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