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1984 agreements, the parties' remedies could have included
seeking specific performance, damages, etc. After execution of
the May 1984 agreements, the buyers could no longer bring suits
for specific performance against the sellers. When the specific
performance remedy was waived10 and liquidated damages were
added, the partnerships had already exercised possession and
control over the condominiums, financing had been arranged, and
the closing was about 1 month away. The deeds from the sellers
to the partnerships were placed in escrow so that payment of the
first installment would effectuate the recording of sellers'
deeds and the transfer of legal titles to the partnerships. The
partnerships were committed to and ultimately did pay the
installments due on July 2, 1984. When specific performance was
waived, matters had progressed to the point where the parties
were prepared and ready to exchange cash for legal title in the
amounts agreed upon in the December agreements.
In addition, the partnerships stood to lose $60,000 per
condominium unit if the first installments were not made. As
noted, the $60,000 represented about 40 percent of the first
installment. Approaching the first installment (due in a little
10Petitioners contend that specific performance by the buyer
would have been against the escrow agent who held the deeds.
Petitioners argue that limiting the remedy between the parties to
liquidated damages would not preclude the partnerships from
seeking specific performance from the escrow agent. We are not
persuaded by petitioners' argument; however, our analysis and the
resolution of the issues here make it unnecessary to further
pursue it.
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