A buyer and seller enter into a written contract for the sale of a parcel of land. The contract obligates the seller to repair a boundary fence before closing. At closing, the deed is delivered and accepted, but the deed is silent about the fence or any repair obligation. After the closing, the buyer discovers that the fence was never repaired and sues the seller for breach of contract. Is the buyer likely to prevail?
Yes, because the promise to repair the fence is collateral to the conveyance and survives the closing.
No, because by accepting the deed the buyer waived any objection to the property's condition.
No, because the doctrine of merger extinguishes any contract term that is not repeated in the deed.
No, because the Statute of Frauds bars enforcement of the fence-repair promise.
The doctrine of merger provides that, upon delivery and acceptance of the deed, contractual promises that relate solely to the conveyance of title are absorbed into the deed and are no longer independently enforceable. Promises that are collateral to title-those that are not satisfied merely by conveying marketable title-survive closing unless the parties clearly agree otherwise. A promise to repair or construct an improvement (such as a fence) concerns the physical condition of the property, not the quality of title, so it is considered collateral. Because the repair covenant survives the closing, the seller remains liable for failing to perform it, and the buyer can recover for breach. The incorrect choices either misapply merger, misunderstand the Statute of Frauds, or wrongly treat acceptance of the deed as a waiver of non-title defects.
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