Daily Decisions: No Restitution for the Weary

Kofmehl v. Baseline Lake, LLC (Division 3, April 12, 2012), is a very interesting case involving contracts for the sale of real estate, the statute of frauds, restitution, rescission, and burdens of proof. Really, it’s got a little bit of something for everyone!

Under Washington law, “[w]hen a purchase and sale agreement is determined to be void under the statute of frauds, the court may grant rescission and award restitution, restoring the parties to their precontractual positions. But a purchaser who relies on the statute of frauds to avoid the contract may not obtain restitution if the vendor is ready, willing, and able to perform as agreed.”

That’s the well-established rule in Washington. What is not so well established, however, is who bears the burden of proof of establishing whether the seller is ready, willing, and able to perform as agreed. The Court of Appeals addresses that question — and more — in this opinion. Continue reading