homeownership
Does the language “willing to take” provide a way to not follow through with a term on a contract?
<p>My wife and I are selling our house in Illinois. As part of the sale, the agent of the buyer said that they will take a 1% commission instead of 2.5% to cover some of the closing costs. The costs are $5,000, and $2,000 of the that would come from the agent.</p>

<p>But the wording of her email concerned us a little. It reads:</p>

<p>“I am sending this email to confirm that I am willing to take 1% commission (instead of the stated 2.5%) for the sale of [our address]. This allowing the seller to contribute $2,000 more towards a closing credit for my client. I was told by my office as well that the amount will be reflected on the commission statement.”</p>

<p>Our concern is with “willing to take.” We were told by our agent that the email is legally binding.</p>

<p>Should we be concerned about this language? Can the agent decide not to follow through with this? Should we ask for more definite terms?</p>

<blockquote>
  <p>Our concern is with “willing to take.”</p>
  
  <p>Should we be concerned about this language? Can the agent decide not
  to follow through with this? Should we ask for more definite terms?</p>
</blockquote>

<p>No, there's no need to be concerned (and, modesty aside, I consider myself a "hawk" when it comes to <a href="https://law.stackexchange.com/questions/30628/how-strict-should-i-be-with-to-the-best-of-my-knowledge/30633#30633">contract</a> matters). The expression "<em>willing to take</em>" does not subject your interests to foreseeable risks, but see below.</p>

<p>The agent's email communication reflects that she <em>willfully</em> and <em>knowingly</em> agrees to absorb some of the closing costs. In the event that the agent fails to honor her proposal, both elements in italics (that is, <em>willfully</em> and <em>knowingly</em>) are decisive in a plaintiff's claims such as breach of contract, fraud, and unjust enrichment.</p>

<blockquote>
  <p>We were told by our agent that the email is legally binding.</p>
</blockquote>

<p>Generally speaking, that is accurate. But if you have signed/accepted a written agreement or written contract stating that any changes thereto are to be reflected only via an amended contract, then that email communication might not be binding. In that case, you should require the agent to produce an amended contract that reflects that she or her office is <em>willing to take</em> the reduced commission. Otherwise, the agent or office could prevail in court alleging that, in light of the <em>explicit</em> terms of the contract, your <em>reliance</em> upon her email was <em>unreasonable</em>.</p>
