                        NOT FOR PUBLICATION WITHOUT THE
                      APPROVAL OF THE APPELLATE DIVISION
     This opinion shall not "constitute precedent or be binding upon any court."
      Although it is posted on the internet, this opinion is binding only on the
         parties in the case and its use in other cases is limited. R.1:36-3.



                                       SUPERIOR COURT OF NEW JERSEY
                                       APPELLATE DIVISION
                                       DOCKET NO. A-2210-15T3

MARLY CARO, on behalf of
A LIMITED LIABILITY COMPANY
or CORPORATION TO BE FORMED,

        Plaintiff-Respondent,

v.

WILLIAM PEREZ,

     Defendant-Appellant.
_________________________________

              Submitted May 10, 2017 – Decided           June 26, 2017

              Before Judges Alvarez and Manahan.

              On appeal from Superior Court of New Jersey,
              Chancery Division, Hudson County, Docket No.
              C-7-15.

              The Abraham Law Firm, LLC, attorneys for
              appellant (Markis M. Abraham, on the briefs).

              Vincent J. La Paglia, attorney for respondent.

PER CURIAM

        Defendant William Perez appeals from an order for specific

performance entered in favor of plaintiff Marly Caro following a

bench trial.       We affirm.
     We discern the following facts from the trial record.                    In

April 2013, plaintiff approached defendant and advised him that

she was interested in purchasing defendant's property located at

364-366 Palisades Avenue, Jersey City, New Jersey (the property).

Predicated upon that conversation, a contract of sale was prepared

by plaintiff's attorney, Vincent La Paglia.            The contract provided

for a purchase price of $750,000, comprised of a $75,000 deposit,

financing of $525,000, and a cash payment due at closing of

$150,000.1      Paragraph   6   of   the   contract     recited   a   mortgage

contingency clause.

             The [b]uyer agrees to make a good faith effort
             to obtain a first mortgage loan upon the terms
             listed below. The [b]uyer has until 60 [days
             after conclusion of inspection contingency] to
             obtain a commitment from a lender for this
             mortgage loan or to agree to buy the
             [p]roperty without this loan. If this is not
             done before this deadline, and any agreed-upon
             extensions, either party may cancel this
             [c]ontract.

After   approval   from   defendant's      attorney,    Joseph    Greco,   both

parties signed the contract on June 7, 2014.




1
  While the contract indicated that the deposit was previously
paid, plaintiff and La Paglia both testified the deposit money
remained in La Paglia's trust account. Plaintiff was not aware
of the deposit payment status until December 2014.


                                      2                                A-2210-15T3
     Plaintiff subsequently applied for a loan and La Paglia

ordered a title report.        The title report revealed issues that had

to be addressed prior to the closing.

     Sometime in July or August 2014, after plaintiff sold property

she owned in Brazil, she advised defendant of her intention to

purchase the property without mortgage financing.               Defendant did

not object and told plaintiff to speak with her attorney.

     By letter dated August 25, 2014, La Paglia corresponded to

Greco that "[m]y client advises she should have mortgage commitment

within the next two (2) weeks.          Subject to clear title, we should

be in a position to close."            The letter further stated that the

preliminary title binder disclosed judgments against defendant,

as well as two open mortgages on the property, both of which were

in foreclosure.

     In November 2014, defendant listed the property for sale with

a broker and placed a sign on the property.             After observing the

sign, plaintiff removed it and contacted her attorney.               Plaintiff

stated that she also contacted defendant.

     Defendant's    attorney      mailed      and   faxed   a   letter,     dated

November 24, 2014, which declared the contract "cancelled and null

and void for failure of the buyer to make the required deposit of

escrow monies and passage of time without furnishing a mortgage

commitment."      The   next    day,    via   email,   plaintiff's   attorney

                                        3                                 A-2210-15T3
rejected defendant's attempt to terminate the contract and advised

that plaintiff intended to proceed on an all-cash basis.                  Further,

plaintiff's letter stated that "the reason this matter has not

closed is [defendant's] inability, at this stage, to satisfy the

title requirements[.]"            Defendant refused to close title and

entered into a sales contract with a third party for $1 million.

     On January 9, 2015, plaintiff filed a three-count complaint

seeking specific performance of a contract for the sale of real

estate.      Additionally, plaintiff pled breach of contract and

requested restraints.          On the same day, plaintiff filed a notice

of lis pendens.2      Defendant filed an answer with a counterclaim on

February     17,     2015,     alleging        tortious   interference    with     a

prospective        economic    advantage,         tortious    interference      with

contractual relation, and unlawful interference with contractual

relations.3 Plaintiff filed an answer to the counterclaim on March

4, 2015.

     A bench trial was held on December 8, 2015, before Judge

Hector Velazquez.            At trial, the judge heard testimony from

plaintiff,    La     Paglia,    and   Stephen      Flatlow,    the   attorney    who

conducted    title     services,      on   plaintiff's       behalf.     Defendant


2
  The lis pendens is not part of the record on appeal.
3
 Defendant's motion for summary judgment, plaintiff's opposition,
and the court order denying summary judgment are not part of the
record on appeal.

                                           4                               A-2210-15T3
testified on his own behalf.      Defendant moved for a directed

verdict after plaintiff rested, which was denied.        After both

parties rested, the judge rendered an oral opinion.          In his

opinion, the judge held that plaintiff was not in material breach

for her failure to make a timely deposit.   The judge also dismissed

defendant's counterclaim.

     In addition to his oral opinion, the judge issued a seven-

page written opinion, reaffirming that (1) plaintiff was not in

material breach for her failure to make the deposit pursuant to

the contract; and determining that (2) the contract did not require

plaintiff to give written notice of her election to proceed without

a mortgage; and (3) equity dictates the court to compel defendant

to specifically perform under the terms of the contract and deliver

a deed at the time and place scheduled for closing.    As a result,

the judge entered a judgment of specific performance in favor of

plaintiff on December 22, 2015.   All other counts in the complaint

were dismissed and any request for compensatory damages was denied.

This appeal followed.4

     Defendant raises the following points on appeal:




4
  Following the filing of the notice of appeal, the judge entered
an order staying the enforcement of the judgment pending appeal
and ordering defendant to post a bond.

                                  5                          A-2210-15T3
                  POINT I

THE TRIAL COURT ERRED IN GRANTING SPECIFIC
PERFORMANCE BECAUSE THE CONTRACT OF SALE WAS
VOID AND UNENFORCEABLE AND THE DEFENDANT'S
TERMINATION WAS VALID.

    A. [PLAINTIFF] COMMITTED A MATERIAL
    BREACH OF CONTRACT BY FAILING TO
    MAKE THE DEPOSIT.    THEREFORE, THE
    CONTRACT   WAS  UNENFORCEABLE   AND
    VALIDLY TERMINATED.

         1. [PLAINTIFF] DID NOT
         PROVIDE CONSIDERATION FOR
         THE CONTRACT TO PURCHASE
         THE PROPERTY THEREFORE
         THE CONTRACT WAS VOID.

         2. [PLAINTIFF'S] FAILURE
         TO MAKE THE DEPOSIT WAS A
         MATERIAL    BREACH     OF
         CONTRACT.

    B. [PLAINTIFF] DID NOT OBTAIN A
    MORTGAGE   COMMITMENT   WITHIN   THE
    CONTINGENCY PERIOD, SHE COULD NOT
    UNILATERALLY WAIVE [DEFENDANT'S]
    RIGHT   TO   CANCEL   THE   CONTRACT
    PURSUANT     TO     THE     MORTGAGE
    CONTINGENCY CLAUSE, AND THEREFORE,
    [DEFENDANT] HAD A RIGHT TO TERMINATE
    THE CONTRACT.

         1. [PLAINTIFF] HAD NO
         RIGHT      TO     WAIVE
         [DEFENDANT'S]    RIGHTS
         UNDER    THE   MORTGAGE
         CONTINGENCY.

         2. [PLAINTIFF] DID NOT
         OBTAIN     A     MORTGAGE
         COMMITMENT   WITHIN   THE
         CONTINGENCY       PERIOD,


                     6                         A-2210-15T3
                    THEREFORE THE        CONTRACT
                    WAS VOIDABLE.

               C. SPECIFIC PERFORMANCE WAS NOT
               APPROPRIATE BECAUSE THE EQUITIES
               MAKE ENFORCEMENT OF THE CONTRACT
               AGAINST [DEFENDANT] TOO HARSH.

                              POINT II

          THE TRIAL COURT ERRED BY DISMISSING THE
          DEFENDANT'S COUNTERCLAIM BECAUSE THERE WAS
          EVIDENCE THE TERMINATION OF CONTRACT WAS VALID
          AND THERE WAS EVIDENCE IN THE RECORD THE
          DEFENDANT SUFFERED DAMAGES.

     Our review of a decision following a bench trial is limited

by well-settled principles.    Sebring Assocs. v. Coyle, 347 N.J.

Super. 414, 424 (App. Div.), certif. denied, 172 N.J. 355 (2002).

"We do not weigh the evidence, assess the credibility of witnesses,

or make conclusions about the evidence."        State v. Barone, 147

N.J. 599, 615 (1997).   We accord deference to the findings of fact

by the court after a non-jury trial, provided the findings are

supported by substantial credible evidence in the record as a

whole.   Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65

N.J. 474, 484 (1974).    We owe no deference, however, to a trial

court's conclusions of law.   Manalapan Realty, L.P. v. Twp. Comm.

of Manalapan, 140 N.J. 366, 378 (1995).

     On appeal, defendant argues the deposit, which amounts to ten

percent of the contract price, was a material term of the contract

that required defendant to forego his right to market the property

                                 7                           A-2210-15T3
at a higher price, as well as for defendant's security during the

mortgage commitment process, and to measure plaintiff's commitment

to close the transaction.     Furthermore, defendant argues that he

was entitled to terminate the contract because plaintiff did not

obtain a mortgage commitment within the contingency period, nor

did she notify defendant in writing that she wished to proceed

with an all-cash deal.

     Every failure to perform as required by a contract, even a

small failure, is a breach that gives rise to a claim for damages.

Restatement (Second) of Contracts § 236 comment a (1981). A breach

is material if it "goes to the essence of the contract."           Neptune

Research & Dev., Inc., v. Teknics Indus. Sys., Inc., 235 N.J.

Super. 522, 531 (App. Div. 1989) (quoting Ross Sys. v. Linden

Dari-Delite, Inc., 35 N.J. 329, 341 (1961)).        Whether a breach is

material is a question of fact.         Murphy v. Implicito, 392 N.J.

Super. 245, 265 (App. Div. 2007); Magnet Res., Inc. v. Summit MRI,

Inc., 318 N.J. Super. 275, 286 (App. Div. 1998).

     "[I]f during the course of performance one party fails to

perform   essential   obligations   under   the   contract,   he   may    be

considered to have committed a material breach and the other party

may elect to terminate it."   Ingrassia Constr. Co., Inc. v. Vernon

Twp. Bd. of Educ., 345 N.J. Super. 130, 136-37 (App. Div. 2001)

(citation and internal quotation marks omitted).       The key question

                                    8                              A-2210-15T3
is whether the breach affected the ultimate goal of the contract

only   tangentially,   or   whether   it   "goes   to   the   essence   of   a

contract."     Neptune Research, supra, 235 N.J. Super. at 531

(citation omitted).     For breaches that are not "material," the

duty of both parties to perform remains intact.                Magnet Res.,

Inc., supra, 318 N.J. Super. at 285.

       We have described a material breach as:

           Where a contract calls for a series of acts
           over a long term, a material breach may arise
           upon a single occurrence or consistent
           recurrences which tend to "defeat the purpose
           of the contract." . . . In applying the test
           of materiality to such contracts a court
           should evaluate "the ratio quantitatively
           which the breach bears to the contract as a
           whole, and secondly the degree of probability
           or improbability that such a breach will be
           repeated."

           [Id. at 286 (quoting Medivox Prods., Inc. v.
           Hoffmann-La Roche, Inc., 107 N.J. Super. 47,
           59 (Law Div. 1969))].

The Restatement (Second) of Contracts § 241 (1981) sets forth the

following criteria to determine whether a breach is material:

           (a) the extent to which the injured party will
           be deprived of the benefit which he reasonably
           expected;

           (b) the extent to which the injured party can
           be adequately compensated for the part of that
           benefit of which he will be deprived;

           (c) the extent to which the party failing to
           perform or to offer to perform will suffer
           forfeiture;

                                      9                             A-2210-15T3
         (d) the likelihood that the party failing to
         perform or to offer to perform will cure his
         failure,    taking   account   of  all   the
         circumstances    including   any  reasonable
         assurances;

         (e) the extent to which the behavior of the
         party failing to perform or to offer to
         perform comports with standards of good faith
         and fair dealing.

    Here, the judge addressed the issue of the materiality of

plaintiff's failure to make a timely deposit when addressing

defendant's motion for a directed verdict:

              With respect to the deposit, there is
         case law in this jurisdiction that would
         indicate that the failure to provide a deposit
         would not be a material breach of the contract
         that would allow for the cancellation of a
         contract for the sale of property, especially
         in a situation like this, where there was
         obviously a mistake made on [] the contract,
         which indicates that the deposit of [$75,000]
         was previously paid.      Everyone, I guess,
         believed that that, in fact, was done. And
         it wasn't until, I guess, November of that
         year, when there was an attempt to cancel this
         contract that the parties actually recognized
         or realized that no deposit was [] provided.

              The [c]ourt notes and [] gives great
         importance to the fact that Mr. Greco, [] as
         the attorney for [defendant] in this case,
         never requested the deposit, even though
         obviously, as the attorney for the seller,
         also has the obligation to review the contract
         terms.    And interestingly enough, in this
         case, there was [] no request for the deposit.
         So I don’t think the failure of the deposit
         would provide this [c]ourt or obligate this
         [c]ourt to find that there was a material
         breach that would allow for cancellation of

                              10                          A-2210-15T3
           the contract.    But at this juncture, this
           [c]ourt would not enter judgment in favor of
           [] the plaintiff on that basis alone.

Furthermore, at the conclusion of the bench trial, the judge held

in his oral opinion:

           I don’t think there's any evidence here that
           would support this [c]ourt denying or voiding
           this contract simply because [] of a mistake
           made with respect to this deposit.     No one
           cared about the deposit; no one asked about
           it; no one questioned it.      Mr. La Paglia,
           unfortunately, made a mistake with respect to
           this contract. He assumed that [] the deposit
           was made when it was not made. Mr. Greco also
           made a mistake. He assumed somebody had the
           deposit   or   frankly,   he   didn’t   really
           understand what the provision said.        But
           neither   of  the   attorneys,   both   highly
           respected in the community and experienced
           real estate practioners, gave a damn about the
           deposit, right? No one cared because the deal
           was we're trying to resolve these title
           issues.    The deposit, I'm sure is there
           somewhere and if it's not there, we'll get it
           there and nobody cared about it.

      We agree that plaintiff's failure to make a timely deposit

in   accordance   with   the   terms    of   the   sales   contract   did   not

constitute a material breach, as it did not defeat the overall

purpose of the contract.       See Magnet Res., Inc., supra, 318 N.J.

Super. at 286.     Furthermore, plaintiff remedied the breach after

notice.   See id. at 287.      The essence of the contract was the sale

of the property to plaintiff for the agreed upon price of $750,000

for which she remained ready and willing to perform.             See Stamato


                                       11                             A-2210-15T3
v. Agamie, 24 N.J. 309, 316 (1957) (citation omitted) ("[T]he

general rule is that he who seeks performance of a contract for

the conveyance of land must show himself ready, desirous, prompt,

and eager to perform the contract on his part.")

     Concededly, it would have been optimal had plaintiff promptly

made the deposit.        Indeed, under other circumstances, plaintiff's

failure to provide payment may have defeated her claim for specific

performance.      However, when considered in context, the oversight

in making timely payment of the deposit did not impact upon

plaintiff's ability to perform her obligation to close title nor

did it otherwise disturb the contract's equilibrium.

     We   next    turn    to   the   mortgage   contingency    clause.      In

addressing       defendant's     arguments      regarding     the   mortgage

contingency clause, the judge concluded that there was no written

notice requirement under the express terms of the contract:

                In order to decide this case, the [c]ourt
           must determine the meaning of paragraph 6 of
           the [s]ales [c]ontract.     To determine the
           meaning of the terms of an agreement by the
           objective manifestations of the parties'
           intent, the terms of the contract must be
           given their "plain and ordinary meaning."
           Nester v. O'Donnell, 301 N.J. Super. 198, 210
           (App. Div. 1997). "A writing is interpreted
           as a whole and all writings forming part of
           the   same    transaction   are    interpreted
           together."    Barco Urban Renewal Corp. v.
           Housing Auth. of Atlantic City, 674 F.2d 1001,
           1009 (3d Cir. 1982) (citing Restatement
           (Second) of Contracts § 202(2) (1981)).      A

                                      12                             A-2210-15T3
"court should not torture the language of [a
contract] to create ambiguity."     Stiefel v.
Bayly, Martin & Fay, Inc., 242 N.J. Super.
643, 651[ (App. Div. ]1990). "In the quest
for the common intention of the parties to a
contract,   the  court   must   consider   the
relations of the parties, the attendant
circumstances, and the objects they were
trying to attain." Anthony L. Petters Diner,
Inc. v. Stellakis, [202 N.J. Super. 11, 28]
(App. Div. 1985). In the interpretation of a
contract, the court's goal is to ascertain the
intention of the parties as revealed not only
by the language used but also with reference
to the surrounding circumstances and the
relationships of the parties at the time it
was entered into.     Driscoll Constr. Co.[,
Inc.] v. N.J. Dep't of Transp., 371 N.J.
Super. 304, 313 (App. Div. 2004); Graziano v.
Grant, 326 N.J. Super. 328, 342 (App. Div.
1999).

     Defendant's     argument      that     the
[p]laintiff failed to provide timely written
notice of the mortgage commitment or of her
election to proceed without mortgage financing
fails simply because [p]laintiff was not
required to provide such notice. See Schultz
v. Topakyan, 193 N.J. Super. 550, 554-53 (App.
Div.[])   ([c]ourt    refused   to    imply   a
requirement of written notice of commitment
within the contingency period of a mortgage
contingency clause), [certif. denied, 99 N.J.
207 (1984)]; Gross v. Lasko, 338 N.J. Super.
476, 484-85 (App. Div. 2001) ([w]here there
is no specific provision requiring a buyer to
notify a seller in writing of buyer[']s
decision to waive the mortgage contingency
clause, the [c]ourt refused to imply one[).]
Here, there is no specific provision in the
contract requiring the [p]laintiff to give
written notice of either, a loan commitment
or an intent to proceed without mortgage
financing.


                     13                           A-2210-15T3
     In arguing that written notice is
required, [d]efendant points to paragraph 29
of the contract which specifies that "[a]ll
notices under this contract must be in
writing." However, while other clauses in the
contract may refer to "notice," there is no
such language in the mortgage contingency
clause. Like the courts in Schultz and Gross,
this [c]ourt will not infer such a requirement
from the language in this contract. To imply
a requirement of written notice in this clause
would require this [c]ourt to rewrite the
contract   to   include   a   written   notice
requirement that was never agreed to. "It is
not the function of any court to make a better
contract for the parties by supplying terms
that have not been agreed upon." [Graziano,
supra, 326 N.J. Super. at 342]; Schenck v. HJI
Assocs., 295 N.J. Super. 445, 450 (App. Div.
1996).   "Where the terms of a contract are
clear, the court must enforce it as written
and not make a more advantageous contract for
either party." [Gross, supra, 338 N.J. Super.
at 486.] The mortgage contingency clause in
this case is clear and unambiguous.      There
clearly is no written notice requirement, and
this [c]ourt will not imply one to give a
better contract than that intended by the
[d]efendant.

     In any event, the competent evidence
demonstrates that the [d]efendant had actual
notice of the [p]laintiff's election to
proceed without mortgage financing.       Both
parties testified that during a meeting in
July or August 2014, the [p]laintiff told the
[d]efendant that she intended to close without
mortgage financing and that she had the cash
available to consummate the sale. Under the
circumstances the [c]ourt finds that the
[p]laintiff complied with her obligations
under the contract. The [c]ourt further finds
that the seller had no lawful right to
terminate the contract and refuse to close
title.

                     14                          A-2210-15T3
     In    construing      a    contract,   "[t]he    court    makes    the

determination whether a contractual term is clear or ambiguous."

Schor v. FMS Fin. Corp., 357 N.J. Super. 185, 191 (App. Div. 2002)

(citing Nester, supra, 301 N.J. Super. at 210).          When the term is

clear, a court is required to enforce the contract as written,

giving    the   words   their   plain,   ordinary   meaning.   Gibson    v.

Callaghan, 158 N.J. 662, 670 (1999).         However, when the words are

susceptible to more than one reasonable interpretation, the court

must examine the document as a whole in resolving the ambiguity

and must consider other external evidence, such as the relationship

of the parties, the contractual objectives, and other attendant

circumstances.     Nester, supra, 301 N.J. Super. at 210.      Still, the

contractual language should not be tortured to create ambiguity.

Ibid.

     As the judge found, the terms of the contract did not call

for written notice of plaintiff's election to proceed without the

loan, it merely required the parties to agree, which they did.

Since defendant had notice of plaintiff's election, the judge held

plaintiff complied with the contract's terms.         To be sure, had the

judge imposed a requirement of written notice not required by the

plain language of the contract, it would have been erroneous.           See

Gross, supra, 338 N.J. Super. at 484-86.



                                    15                            A-2210-15T3
     We review the grant of specific performance for an abuse of

discretion.      Estate of Cohen ex rel. Perelman v. Booth Computers,

421 N.J. Super. 134, 157 (App. Div.), certif. denied, 208 N.J. 370

(2011).      While the "abuse of discretion standard defies precise

definition," we may find an abuse of discretion when a decision

is   "made      without    a    rational          explanation,"        "rest[s]   on     an

impermissible        basis,"      or   was    "based     upon    a    consideration      of

irrelevant      or   inappropriate           factors."         Flagg    v.    Essex    Cty.

Prosecutor, 171 N.J. 561, 571 (2002) (internal quotation marks and

citations omitted).

     Specific performance is an equitable remedy that operates to

compel    one    party     to     unwillingly        transact        with    another   and

therefore, should be granted in only exceptional circumstances.

See Centex Homes Corp. v. Boag, 128 N.J. Super. 385, 392-93 (Ch.

Div. 1974) (citation omitted) (stating that "considerable caution

should be used in decreeing the specific performance of agreements,

and the court is bound to see that it really does the complete

justice   which      it    aims    at,   and       which   is    the    ground    of   its

jurisdiction").           However,     "[t]here       is   a    virtual      presumption,

because of the uniqueness of land and the consequent inadequacy

of monetary damages, that specific performance is the . . .

appropriate remedy for . . . [a] breach of the contract to convey"



                                             16                                   A-2210-15T3
real property.    Friendship Manor, Inc. v. Greiman, 244 N.J. Super.

104, 113 (App. Div. 1990), certif. denied, 126 N.J. 321 (1991).

     To establish a right to specific performance, the party

seeking the relief must demonstrate that the contract in question

is valid and enforceable at law, and that the terms of the contract

are clear.      Marioni v. 94 Broadway, Inc., 374 N.J. Super. 588,

598-99 (App. Div.), certif. denied, 183 N.J. 591 (2005).                   Thus,

even if the parties had an enforceable contract, the remedy of

specific performance is not automatic, as the decision is a

discretionary one based on principles of equity.                   Id. at 599

("[T]he right to specific performance turns not only on whether

plaintiff has demonstrated a right to legal relief but also whether

the performance of the contract represents an equitable result.").

     Specific      performance        is     infused       with     equitable

considerations;     the   applicant       "must    stand   in   conscientious

relation to his adversary; his conduct in the matter must have

been fair, just and equitable, not sharp or aiming at unfair

advantage."     Stehr v. Sawyer, 40 N.J. 352, 357 (1963).            Further,

"[t]he   long   established   rule    is    that    the    party   who    'seeks

performance of a contract for the conveyance of land must show

himself ready, desirous, prompt and eager to perform the contract

on his part.'"     Ridge Chevrolet-Oldsmobile, Inc. v. Scarano, 238



                                     17                                  A-2210-15T3
N.J. Super. 149, 156 (App. Div. 1990) (quoting Stamato, supra, 24

N.J. at 316).

    The judge found the conditions requisite to satisfy specific

performance were met:

              Evaluation of the equities in this case
         favor the [p]laintiff.     First, the parties
         were both represented by competent attorneys,
         each with many years of experience in handling
         residential   and   commercial   real   estate
         closings.    They reviewed and approved the
         final terms of the sales contract and neither
         attorney sought to modify or change the
         mortgage contingency clause so as to require
         the type of written notice the [d]efendant now
         seeks to enforce. Second, from the date of
         execution of the contract on June 7, 2014[,]
         until the Notice of Termination was served on
         November 24, 2014, neither party suggested
         that there was an issue regarding the mortgage
         contingency clause. In fact the closing was
         proceeding in its normal course, with a loan
         application having been made and title work
         having been ordered. Prior to the receipt of
         the termination notice, neither [p]laintiff
         nor her attorney ever suspected that the
         [d]efendant   was   concerned   that  a   loan
         commitment was not received within the time
         specified in the contract.     In fact, it is
         reasonable to assume that the [d]efendant did
         not really care about said contingency because
         [p]laintiff had expressed her intent to close
         without mortgage financing sometime in July
         or August 2014.    Thus, it seems abundantly
         clear that the [p]laintiff was lulled into
         believing that no further notices were needed
         and that the closing would take place when the
         title company completed its due diligence.
         Third, it is clear from the evidence that the
         real reason for seeking to terminate the
         contract was because the [d]efendant believed
         he could sell the property to another buyer

                              18                          A-2210-15T3
for substantially more than the $750,000
[p]laintiff had offered. The evidence clearly
demonstrates that prior to sending the notice
terminating contract, the [d]efendant had
negotiated a new listing agreement and was
marketing the property for sale. In fact, the
[d]efendant would later enter into a new
contract for [$1 million].         Defendant's
conduct could be interpreted as violating the
implied covenant of good faith and fair
dealing.   In this regard, our Court[] ha[s]
held that "[e]very contract [entered into
under the laws of this state] contains an
implied covenant of good faith and fair
dealing."    Kalogeras v. 239 Broad Ave.,
L.L.C., 202 N.J. 349, 366[] (2010) [(citation
omitted)].   "Good faith" imports "standards
of decency, fairness or reasonableness" and
"requires a party to refrain from 'destroying
or injuring the right of the other party to
receive' its contractual benefits." Iliadis
v. Wal-Mart Stores, Inc., 191 N.J. 88, 109-
10[] (2007). Finally, the [c]ourt concludes
that an order compelling performance will not
be harsh or oppressive to the [d]efendant. He
is not being denied what he bargained for, the
sale of his property for the total purchase
price of $750,000.       On the other hand,
[p]laintiff would be denied what she has
bargained for, the purchase of real property,
for a reasonable price, that she intends to
rehabilitate for residential and commercial
use. Under the circumstances[,] this [c]ourt
must conclude that it would be unfair and
unjust   to   permit    the   [d]efendant   to
unilaterally terminate a contract for a breach
of the mortgage contingency clause without
affording the [p]laintiff an opportunity to
cure the alleged breach within a reasonable
period of time. This [c]ourt opts "to apply
reasonableness to the situation" and concludes
that the oral notice given to the [d]efendant
was sufficient compliance with the mortgage
contingency   provision    of  the   contract.
Defendant must therefore be compelled to

                     19                          A-2210-15T3
          comply with the terms of the contract and
          deliver a deed at the time and place scheduled
          for closing. To do otherwise would result in
          the forfeiture of the [p]laintiff's rights, a
          result abhorred by equity. Shultz, supra, 193
          N.J. Super. at 553[] (citing Bertrand v.
          Jones[,] 58 N.J. Super. 273, 281 (App. Div.
          1959)).

     In awarding specific performance, we are satisfied the judge

exercised appropriate discretion by aptly weighing the equities

and determining they aligned with plaintiff.     See Stehr, supra,

40 N.J. at 357.    We discern no error in the judge's determination

the parties entered into a valid and enforceable contract and that

the enforcement of the contract would not be "harsh or oppressive."

See Marioni, supra, 374 N.J. Super. at 599 (citation omitted).5

     Finally, we have considered defendant's argument relating to

the dismissal of the counterclaim in light of the record and

conclude it lacks sufficient merit to warrant consideration in a

written opinion.    R. 2:11-3(e)(1)(E).

     Affirmed.




5
  In reaching our decision, we reject as wholly without merit
defendant's argument that enforcement of the contract was
"oppressive" based upon his loss of $250,000.

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