Case summary: p. 522) F.J. Miceli and Slonim Development Corp. v. Dierberg, 773 S.W.2d 154 (Mo. Ct. App. 1989) (Mallor, 16th Ed., No. 5, p. 522).

The Bassos contracted with Dierberg to purchase her property for $1,310,000. One term of the contract stated, [t]he sale under this contract shall be closed ... at the office of Community Title Company ... on May 16, 1988 at 10:00 AM.... Time is of the essence of this contract. After forming the contract, the Bassos assigned their right to purchase Dierberg's property to Miceli and Slonim Development Corp. At 10:00 AM on May 16, 1988, Dierberg appeared at Community Title for closing. No representative of Miceli and Slonim was there, nor did anyone from Miceli and Slonim inform Dierberg that there would be any delay in the closing. At 10:20 AM, Dierberg declared the contract null and void because the closing did not take place as agreed, and she left the title company office shortly thereafter. Dierberg had intended to use the purchase money to close another contract to purchase real estate later in the day. At about 10:30 AM, a representative of Miceli and Slonim appeared at Community Title to begin the closing, but the representative did not have the funds for payment until 1:30 PM. Dierberg refused to return to the title company, stating that Miceli and Slonim had breached the contract by failing to tender payment on time. She had already made alternative arrangements to finance her purchase of other real estate to meet her obligation under that contract. Miceli and Slonim sued Dierberg, claiming that the contract did not require closing exactly at 10:00 AM, but rather some time on the day of May 16.

True or False; explain.

1. The parties to a contract may provide for the time for performance. When a contract says time is of the essence, that normally means that time of performance is a vital part of the contract. When a particular time is stated, the contract must be performed by that time.

2. Dierberg could have escaped liability for her contract to purchase the other parcel of real estate by claiming her failure to reach settlement with Bassos or assignees discharged her obligation to purchase the property.

3. The right to acquire title to the property sold by Dierberg to Bassos is not assignable to Miceli and Slonim Development Corp. without the express consent of Dierberg.

4. The agreement between Dierberg and Bassos and the agreement between Bassos and Miceli and Slonim Development Corp. are governed by the Statute of Frauds.

5. Dierberts contractual obligations to transfer title to the property to Bassos (and his assignee Miceli and Slonim Development Corp.) have been discharged by the material breach of contract to conduct closing as scheduled.