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Practice, Civil, Relief from judgment, Contempt, Correction of record on appeal. Page 315 CIVIL ACTION commenced in the Worcester Division of the Probate and Family Court Department on March 30, 2001. The preprinted portion of the second right of first refusal recited that it was executed "under seal" and "[f]or good and valuable consideration, the receipt Page 317 whereof is hereby acknowledged." Under the terms of the second right of first refusal, the decedent agreed not to sell the property prior to January 1, 2004, to a third party without first notifying Neumann of the third party's acceptable bona fide offer to purchase, and offering Neumann the opportunity to purchase the property on the terms recited in the bona fide offer.
We granted the plaintiff's application for further appellate review and conclude that no sound legal justification exists for maintaining the common-law fiction that an option contract executed under seal conclusively imports consideration, and we adopt the position of the Restatement Page 316 (Second) of Contracts § 87(1) (1981) concerning the validity of such contracts. We summarize the relevant facts and procedural history from the judge's amended findings of fact and elsewhere from the undisputed record, as necessary.
Some time thereafter, the decedent received an acceptable bona fide offer from Riverdale Mills Corporation, an entity owned and controlled by the plaintiff, James Knott, to purchase the property for 0,000. Of significance here, Neumann filed a verified cross claim and counterclaim for specific performance of the right of first refusal, and Knott asserted as an affirmative defense that the right was void for want of consideration. In an unpublished memorandum pursuant to its rule , the Appeals Court affirmed the judgment and the orders.
We are now asked to abolish the common-law presumption of consideration for option contracts [Note 3] executed under seal. In June, 1997, The Maiden Merchant International Incorporated entered into a written lease with Linwood Mill Realty, Inc. The decedent signed the lease as president of Linwood Mill Realty, Inc., and the defendant Deborah Kay Neumann signed as chair, chief executive officer, and founder of Maiden Merchant.
However, for reasons we discuss below, our conclusion does not affect the judgment of the Probate Court, which we now affirm. We reserve for later discussion certain facts related to posttrial motions. Racicot (decedent) owned the Linwood Mill (property), a commercial property located in Northbridge and Uxbridge.
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