On August 9, 1995, McCarthy executed an offer to purchase Tobin’s real estate on a pre-printed form generated by the Greater Boston Real Estate Board. The OTP contained, among other provisions, a description of the property, the price to be paid, deposit requirements, limited title requirements, and the time and place for closing.
The OTP required that the parties “shall, on or before 5 p.m. August 16, 1995, execute the applicable Standard Form Purchase and Sale Agreement recommended by the Greater Boston Real Estate Board. which, when executed, shall be the agreement between the parties hereto.” In the section containing additional terms and conditions, a typewritten insertion states: “Subject to a Purchase and Sale Agreement satisfactory to Buyer and Seller.” The OTP provided, “Time is of the essence hereof.”
On August 16, 1995, sometime after 5 p.m., Tobin's lawyer sent a first draft of the purchase and sale agreement by facsimile transmission to McCarthy's lawyer. Over the next 10 days, the lawyers for the two parties discussed changes to the first draft of the purchase and sale agreement and on August 26, McCarthy signed the agreement and his lawyer forwarded the signed agreement and deposit money to Tobin’s lawyer via overnight delivery.
On August 26, Tobin accepted an offer from a second buyer, Davis. On August 27, Tobin’s lawyer told McCarthy’s lawyer that Tobin had accepted Davis’s offer.
Was the offer to purchase executed by McCarthy and Tobin a binding contract? Explain why you think your answer is correct.