ready, able and willing or ready, willing and able

An expression used to describe a prospective purchaser who is in a position to sign a binding contract; one who is prepared, legally capable and financially able to purchase a property. An agent or broker's commission may be made payable upon condition that he procures a purchaser who is 'ready, able and willing' to execute an unconditional contract on terms specified by the seller. In such an instance, as a rule, if the agent fulfils that condition, even if the seller refuses to conclude the sale or withdraws the property, he has earned his commission. Also, as a rule, if nothing is expressed to the contrary as to an agent's obligation, he is entitled to a commission when a purchaser has been procured who is 'ready, able and willing' to purchase the listed property on the seller's terms. The expression 'ready, able and willing' or 'ready, willing and able' has been adopted and thoroughly reviewed in English and American case law leading to almost identical interpretations (Christie Owen & Davies Ltd v Rapacioli [1974] QB 781, [1974] 2 All ER 311 (CA); McGavock v. Woodlief, 20 Howard 221, 61 US 221, 15 L Ed 884 (1858), Note: "When a broker, to sell real estate, is entitled to commissions"; Dotson v. Milliken, 209 US 237, 28 S Ct 489, 52 L Ed 768 (1908); Ellsworth Dobbs, Inc. v. Johnson, 50 NJ 528, 236 A.2d 843 (1967)). However, in the US, in a few jurisdictions, the view has been taken that a person cannot be considered 'ready, willing and able' to complete until a binding and enforceable contract is signed, or even until the transaction is closed.

'Ready and willing' means that the purchaser must be prepared to enter into the contract on the terms offered and such a position should not be impeded by an outside factor, such as the fact that a prospective purchaser of a lease was not a suitable assignee for the existing landlord (Comley v Wellman (1948) 65 WN (NSW) 268 (Aus); Dellafiora v Lester [1962] 1 WLR 1208, [1962] 3 All ER 393 (CA); Nelson v. Bolton, 72 Ill App.3d 519, 391 N.E.2d 182 (1979); Savills Land & Property Ltd v Kibble [1998] EGCS 170 (CA)). A purchaser cannot be said to be 'ready' if the essential terms are not agreed upon (Gabrielli v. Fabian, 167 AD.2d 684, 563 NYS.2d 266 (1990)). In particular, 'willing' means that the purchaser should be prepared to put his signature to a binding contract on the terms offered and be bound thereby; "for the words 'ready and willing' imply not only the disposition, but the capacity to do the act", De Medina v Norman (1842) 11 LJ Ex 320, 322. As a rule, a person is not 'willing' to purchase if all he has done is sign a conditional contract, such as a contract 'subject to finance', at least until the condition is fulfilled (Graham & Scott (Southgate) Ltd v Oxlade [1950] 2 KB 257 (CA); Woodland Realty, Inc. v. Winzenreid, 82 Wis.2d 218, 262 N.W.2d 106 (1978)). A purchaser cannot be said to be 'willing to purchase' if he is unable to complete the purchase or, at least, prove a willingness to execute an unconditional and binding contract (and the seller is able to do so) (McCallum v Hicks [1950] 2 KB 271 (CA); Ellsworth Dobbs v. Johnson, supra at 855; Bennett Realty, Inc. v. Muller, 396 S.E.2d 630 (NC Ct App 1990)). The execution of an option to purchase does not normally make the purchaser willing to purchase; at least until the option is exercised and there is a binding and unconditional 'contract to purchase' (Spiro v Glencrown Properties Ltd [1991] Ch 537, [1991] 1 All ER 600; Mercia v. Billings, 238 A.2d 636, 32 ALR3d 317 (Vt 1968); John Dull & Co. v. Life of Nebraska Insurance Co., 642 S.W.2d 1 (Tex Civ App 1982); Anno: 32 ALR3d 321: Broker's Commission—Finding Optionee). If a purchaser offers to buy at less than the asking price (and the vendor initially accepts) and the purchaser fulfils the criteria outlined above, even though the sale does not proceed (for example, because the vendor then decides to sell to another at a higher price), the prospective purchaser may be considered 'ready, able and willing' (Christie Owen & Davies Ltd v Rapacioli, supra; Anno: 74 ALR2d 443, 474: Broker—Right to Commission).

'Ability' to purchase depends primarily on financial ability (James v Smith (1921) [1931] 2 KB 317 n., 322 (CA); Ellsworth Dobbs v. Johnson, supra at 853; Potter v. Ridge Realty Corp., 28 Conn Sup 304, 259 A.2d 758 (1969)). This does not necessarily mean that the funds must be immediately to hand in the bank. If the purchaser has sufficient and demonstrable financial means, or if the required funds can be realised from the sale of another property in time to consummate the proposed transaction, the purchaser may be considered 'able to purchase' the property (Pellaton v. Brunski, 69 Cal App 301, 231 P 583, 584 (1924); Perper v. Edell, 160 Fla 447, 35 So.2d 387, 391 (1948)). On the other hand, one who agrees to purchase subject to a mortgage being obtained cannot be said to be able to purchase until a firm commitment is obtained from a lender or the funds are secured (Murdoch Lownie Ltd v Newman [1949] 2 All ER 783; McGill Corp. v. Werner, 631 P.2d 1178 (Col App 1981)). "To show purchasing ability it need not be shown that the purchaser is ready with cash in hand, but only that the purchaser is able to command the necessary money to close the transaction on reasonable notice or within the period stipulated by the parties … Also, purchasing ability may be demonstrated by showing that the purchaser is a person of substance", Sharp v. Long, 283 So.2d 567, 568 (Fla App 1973).

In summary, in English law, it has been said that for a person to be 'ready, able and willing' to buy a property on terms deemed acceptable to the seller, the purchaser "must be a person who is 'able' at the proper time to complete; that is, he must have the necessary financial resources. He must also be 'ready'; that is, he must have made all necessary preparations by having the cash or a banker's draft ready to hand over. He must also be 'willing'; that is, he must be willing to hand over the money in return for the conveyance … I [Lord Denning] can see no sensible distinction between instructions to 'find a purchaser', 'find a party prepared to purchase', 'find a purchaser able and willing to complete the transaction' and 'find a person ready, willing and able to purchase'. The rights and liabilities of house owners in these cases should not depend on fine verbal differences. If an estate agent [or broker] desires to get full commission not only on sales, but also on offers, they must use 'clear and unequivocal language': See Luxor (Eastbourne) Ltd v Cooper [1941] AC 108, 129 (HL) per Lord Russell", Dennis Reed Ltd v Goody [1950] 2 KB 277, 287, 288 (CA) (Savills Land & Property Ltd v Kibble [1998] EGCS 170 (CA); Tristram's Landing v. Waite, 367 Mass 622, 327 N.E.2d 727, 731 (1975), which suggests that there is a need for a closing of the transaction as a prerequisite to demonstrating the purchaser's 'financial ability'). The words prepared to purchase may be considered to incorporate all three of the requirements of 'ready, able and willing'.

If two agents or brokers are appointed on the same basis, albeit inadvertently, either may be capable of introducing a purchaser 'ready, able and willing' and, in that event, they may both be entitled to commission. As stated in the English Court of Appeal, "where a prospective vendor binds himself to more than one estate agent [or broker], he may find himself liable to pay more than one commission", Christie Owen & Davies Ltd v Rapacioli, supra at 790, at 319. However, the principal may be able to argue that the agent who is the procuring cause ('effective cause') of the completed transaction is the only party entitled to payment. In order to avoid the risk of double commissions a vendor should not instruct more than one agent who will be paid for procuring a client who is 'ready, able and willing', at least without making the commission payable only to the agent who has produced the buyer that completes the sale. Similarly, in the US, it has been held that a broker may be entitled to two commissions if he presents a party who is 'ready, able and willing' to complete and the sale then falls through due to a failure by the seller, and he later presents a purchaser who does complete (Stover & Sons, Inc. v. Harry Norman, Inc., 187 Ga App 514, 370 S.E.2d 776, 777 (1988)).

In the US, it has been said that where the seller is unable to deliver a good title, and the broker is aware of the defect, the broker has acted in bad faith and is not entitled to a commission, even if the buyer is properly procured; although some jurisdictions accept that this rule does not apply if the defect can be cleared (28 ALR4th 1007: Real-Estate Broker's Commission).