Buying through broker, why 'offer before survey'?

[Tranona]

Leaving aside your patronising start to the last paragraph ( you really must be a lawyer!) there is a lot of agreement between us. An offer subject to contract is just what it says it is - an offer. But it is not what you would like it to be - a contract. And that is just the point. Nobody but a fool would make a legally binding offer / verbal contract to buy subject to survey when the buyer, the broker, the seller and the surveyor are higly unlikely ever to agree what "failing survey" means. Which is of course why many surveyors will , at the time of arranging the survey, make the point that they will find sufficient "defect" to allow you to negotiate a sufficiently reduced price to coiver their costs.

I have bought 4 boats so far and in every case I have agreed a deal " subject to contract" and in every case the boat has temporarily been taken off the market. In 3 cases there was no deposit either. I have sold 3 of those boats on exactly the same basis albeit in no case via a broker.

I cannot advise the OP too strongly not to commit to a contract until he is totally happy about all aspects of the deal from price to survey and documentation. If thats not acceptable to the seller, walk.

I am not sure what planet you are on, and who it is that is agreeing with you, but I am afraid you are just WRONG. If you agree to buy something and the seller agrees to sell you have entered into a legal contract. Just read any basic book on contract law. This does not happen to be the case with houses where the offer is always "subject to contract" - so the initial agreement on price is just that, not an agreement to buy because you have not shown an intention to be legally bound. The seller is still free to sell to somebody else and you are free not to proceed.

For there to be a contract, 3 things must happen. First an agreement between the two parties - one offering and one accepting. Second an intention to be legally bound, and third some consideration of value (money for example).

So if you say offer £x for a boat, and the other party agrees and you are both willing, you have a contract which binds you both. It does not have to be in writing, but better if it is.

You can make your offer "subject to contract" - but it is not binding on the other party and you have not signalled an intention to be legally bound, therefore it is not a contract and it has no meaning as the other party can do whatever they like until you both agree and the 3 key elements are in place.

There must be lot of of fools around if you are right that nobody would sign a contract that is subject to a satisfactory survey as it happens every day of the week. You can place specific conditions in your contract if both parties agree, but as I explained earlier that is not necessary in most circumstances.

What you describe in your second paragraph is a contract, whether you like it or not - an agreement to buy, and an acceptance to sell, and there is a condition that the boat must have sound documentation and the survey must be satisfactory. Exactly what the normal contract says, you just did not have it in writing, and if you pulled out for any reason other than the survey showing that the boat was not as described, or he was not able to produce the correct documents, he could legally seek to enforce the contract or recover any losses from you.

No, I am not a lawyer, although I have studied law, but you don't have to be a lawyer. Just go on Amazon buy a secondhand copy of Nutshells Contract by Robert Duxbury (it is a basic text for any course on the law of contract) and you will find exactly what I have explained on pages 1&2.

Of course in reality, most contracts get completed without any dispute, whether they are verbal or in writing, so you don't see what happens when things go wrong, but the law is there to provide a framework for solving such disputes (further reading of Duxbury will give you a flavour of the form disputes might take and how they are resolved) and of course it is easier to resolve them if the contract is in writing. Equally both parties could agree not to complete the contract, even though the conditions are met, because sometimes it is better to do this than try to resolve the dispute through the law. You will find this sometimes happening in boat transactions when the buyer gets cold feet, or does not in fact have the money to complete and the seller recognises that trying to force completion is going to be painful and expensive, so the sensible thing is to release the buyer from the contract.

Your last piece of advice is only partly right. The buyer should ensure that he is happy that he wants to be bound before he makes an offer, so inspection of the boat agreeing the price, checking the documentation are all sensible things to do before making an offer. whether getting a survey before making an offer is sensible is another matter for two reasons. First the seller may not agree to that level of access to his private property and second as there is no contract in place he is free to sell to another or not to sell at all. So you could end up spending large sums of money with no certainty that you can actually buy the boat.

So we go full circle and find that the normal way of proceeding is to enter into a conditional contract that give both parties an expectation that the transaction will be completed, subject to the conditions being met.