Grieber v. Scott

¶1dissenting:

¶2I respectfully dissent. Under the facts of this case, I would find that the sale should take place under the court’s compulsion. There is no statute of frauds disability here. *35Nor is there any other fatal defect—such as indefiniteness—which would prevent the enforcement of what was obviously meant by the parties to be a binding contract.

¶3The case of Detwiler v. Capone, 357 Pa. 495, 55 A.2d 380 (1947), is on point here and should govern the disposition of the statute of frauds issue. The majority opinion casts some doubt on the continuing vitality of Detwiler. I am not clear why there should be any question on this matter. Detwiler, held, inter alia, that a contract for the sale of land1 does not fail to meet the statute of frauds due to an absence of terms regarding the length of time of the mortgage and the amount of interest to be paid. There can be no doubt that those missing terms are of considerably greater practical importance that the term missing in the instant case: the amortization of principal.

¶4Detwileris, admittedly, a relatively old case—1947. However, old law is not necessarily invalid law. Precedent retains much of its force notwithstanding the passage of time. Only intervening decisions distinguishing the holding of an opinion, or an overruling by a court with the capacity to do so2 can substantially weaken an opinion’s binding strength. No such intervening cases have done this to Detwiler. We are bound by the voice of the Pennsylvania Supreme Court echoing from the past as long as closer and, therefore, louder voices from that court do not speak on the same point.

¶5The majority opinion goes on to conclude that the gap filler indicated in Detwilercannot be properly applied here.3 Where the term is entirely empty, the court will determine what a “reasonable” amortization of principal would be. Here, the majority argues, the term is not completely blank. *36I agree. The parties made reference to the means by which the term would be established: the most advantageous method for purposes of taxation for the seller. But the majority goes on to conclude from the inclusion of this reference point, this yardstick, that the court is entirely unable to fill the gap and enforce the contract. Here I must, respectfully, disagree.

¶6The inclusion of the yardstick means, simply, that the court is in even a better position to fill in the missing term. It is, by reference to the taxation standard, now only a partial gap. On remand, the court can take evidence from appellant’s and appellee’s experts about the most advanta-gous method for the principal to be amortized and thus determine what that term should be.

¶7In the last twenty years, the law of contracts has placed a greater emphasis on the consummation of sales. The acceptance of the Uniform Commercial Code has been a prime influence in this trend. While only strictly applicable to the sale of goods, and thus not to the sale of land before us, Article 2 of that Code can be most instructive here. Its conceptual approach has influenced the law of contracts generally and with good effect. Section 2-204(3) of the Code states:

Even if one or more terms are left open a contract for sale does not fail for indefiniteness if the parties have intended to make a contract and there is a reasonably certain basis for giving an appropriate remedy.4

¶8In commenting on the rationale for this section, one treatise notes: “All too often in the past a contracting party, dissatisfied with his bargain, has taken refuge in the doctrine [of indefiniteness] to renounce his agreement. Rarely did the uncertainty itself cause the dissatisfaction.” Calamari and Perillo The Law of Contracts, 1977. I cannot, of course, say that this was the motivation of the instant *37appellee. Of other things, such as the proper result in this case, I am more certain.

¶9The intent to make a contract, the basis for filling the partial gap and the absence of any statute of frauds bar, together oblige me to conclude that specific performance should have been granted in the instant case.

¶10I vote to reverse.