(dissenting).
I disagree that this contract is too uncertain to be enforced in equity. It provides for a purchase price of $3,275,000 to be paid $300,000 in cash and by execution of a purchase money second mortgage for $800,000. The first mortgage on the property held by the United States Savings Bank was always in the minds of the parties and is mentioned at least three times in the contract. The balance owing thereon of approximately $2,175,000 represents the remainder of the purchase price.
The majority reasons that the failure to specify how the first mortgage “is to be dealt with” results in the omission of an essential term. To my mind it does not.
... [I]t is not necessary for a writing to contain every possible contractual provision to cover every contingency in order to qualify as a completed binding agreement. See 1- Corbin, Contracts, § 95 (1963); United States v. City of New *457York, 131 F.2d 909 (2 Cir. 1942), cert. den., 318 U.S. 781, 63 S.Ct. 838, 87 L.Ed. 1149 (1943). Some of these issues may be determined by the operation of law, or the parties may resolve such differences by subsequent agreement, or a contract may be silent in those respects. In any event, a contract is no less a contract because some preferable clauses may be omitted either deliberately or by neglect. So long as the basic essentials are sufficiently definite, any gaps left by the parties should not frustrate their intention to be bound. Such is the just and fair result. See 1 Corbin, Contracts, § 95 at 400 (1963); Volk v. Atlantic Acceptance, 139 N.J.Eq. 171 (Ch. 1947); Lind v. Schenley, 278 F.2d 79, 86 (3 Cir. 1960). [Berg Agency v. Sleepworld-Willingboro, Inc., 136 N.J.Super. 369, 376-377 (App.Div.1975)]
See, also, Paley v. Barton S. & L. Ass’n, 82 N.J.Super. 75, 83 (App.Div.1964), certif. den. 41 N.J. 602 (1964).
The contract before us clearly demonstrates the parties’ “intention to be bound.” Whatever questions there may be as to the details of their understanding can be answered almost as a matter of mechanics.
It is obvious that paragraph 11 is intended to protect the purchaser from having to perform without first obtaining needed financing, an understanding which runs through all three drafts of the agreement. Its terms may be waived only by the purchaser, and if they are waived it follows, even though not expressly stated, that the sale will be subject to the lien of the first mortgage. If the first mortgagee decides to accelerate and declare the balance due, the purchaser will then have to pick among available alternative responses. It could obtain financing elsewhere and liquidate the accelerated balance, or it might challenge the mortgagee’s right to accelerate. In the latter case the mortgagee could declare the mortgage in default and the rights of the parties would be resolved under equitable principles relevant to the issues as they may then be framed. But this is substantially the same situation which would exist if in fact the purchaser had expressly assumed the mortgage with the first mortgagee’s approval and then defaulted in payments. In both cases the balance of the purchase price is paid by relieving the seller of the duty to clear the first mortgage and in both cases the perils of foreclosure are the same to each of the parties.
*458By providing in paragraph 11 that the sale is subject to the “approval” of the first mortgagee, the parties left no doubt that the purchaser was to be permitted to pay off the balance by assuming the monthly mortgage payments, if agreeable to the mortgagee. The only departure from this expectation which I can envision under the present circumstances is that the purchaser may now be required to pay the entire balance still due under the mortgage or face foreclosure of both mortgages and the loss of its $300,000 investment. This possibility is a burden which the purchaser is apparently willing to accept and furnishes no justification for nonperformance by the seller.
But these clearly foreseeable contingencies are neither here nor there; they have nothing to do with the essential terms of the contract. Nor does the fact that foreclosure of the first mortgage might have an adverse impact upon the purchase money second mortgage taken by the seller. These are all merely possible consequences of the purchaser exercising its expressly reserved right to waive the first mortgagee’s approval as a condition of the sale. All of this could have been anticipated during negotiations and it is in light thereof that the parties must be deemed to have contracted.
It is presumed that the parties intended to make a binding and enforceable obligation and “as between two equally reasonable constructions the court should adopt the one which makes the contract valid as opposed to one reaching a contrary result.” Silverstein v. Keane, 19 N.J. 1, 11 (1955); G. Loewus & Co., Inc. v. Vischia, 2 N.J. 54, 58 (1949). As the Supreme Court stated in New Jersey Bank v. Palladino, 77 N.J. 33 (1978):
... Terms will be implied in a contract where the parties must have intended them because they are necessary to give business efficacy to the contact as written. Renee Cleaners, Inc. v. Good Deal Super Markets of N.J., Inc., 89 N.J.Super. 186, 190 (App.Div.1964). There is the strongest reason for interpreting a business agreement in the sense which will give it legal support. Silverstein v. Keane, 19 N.J. 1, 11 (1955) ... Such a construction accords also with the proposition that when the terms of an agreement have more than one possible interpretation, by one of which the agreement would be valid and by the other void or illegal, the former will be preferred. 3 Corbin, Contracts, § 546 at 170 (1960); Kelly v. Guarantee Trust Co., 114 N.J.Eq. 110, 115 (E. & A. 1933); G. Loewus & Co. v. Vischia, 2 N.J. 54, 58 (1949). [at 46]
*459The contract occupied the attention of the parties from February 14,1977 to June 7,1977. Three drafts were prepared by the lawyers for consideration by the parties, with particular attention given to the purchaser’s rights under paragraph 11, and the final draft represents their studied decision as to how they wanted this handled. That during negotiations Dr. Zito expressed his desire “that Sidpaul was to have a right to get out of the contract if the United States Savings Bank did not approve of the transfer” tells us only that the point was not overlooked and that the written provision reserving this right to the purchaser alone was bargained for and was not inadvertent. Furthermore, the fact that the majority finds it unbelievable that Dr. Zito would agree to this should not affect our deliberation. What matters is that he did agree to the contract as written. There may have been business and personal factors involved which furnished his incentive to make this concession about which we know nothing and should not speculate.
I see no alternative but to conclude that the parties intended the $2,175,000 balance to be satisfied by relieving Sidpaul of the obligation to liquidate the first mortgage; that the purchaser was to take subject thereto and be left free to deal thereafter with the first mortgagee. There is no reason why this understanding cannot be enforced. In order to deny specific performance for the reason given by the majority the uncertainty “must be so great as to prevent the existence of a contract.” Fountain v. Fountain, 9 N.J. 558 (1952).
... If there be sufficient expressed to constitute “a legally valid contract,” a court of equity can make certain by its decree, within reasonable limits, subordinate details of performance which the contract itself does not express, [at 566 citing Williston on Contracts (rev. ed.), § 1424]
If it is suggested that the events of a foreclosure proceedings may culminate in enabling the purchaser unjustly to evade payment of the balance of the purchase price, I can only observe that a broad array of equitable remedies are available to stifle this possibility. Some of these, as the majority notes, were enumerated by the trial judge and one was, in fact, made a part *460of the judgment but was objected to and brought up for review by the seller on the ground that the introduction of this safeguard for its own protection constitutes a rewriting of the contract.
Moore v. Galupo, 65 N.J.Eq. 194 (Ch. 1903), relied on by the majority, is distinguishable. There the balance of an agreed purchase price was to be paid by a “mortgage or mortgages,” about which nothing more was said except that they were to bear interest at the rate of 6%. Nothing was said about the term of the mortgages, how many there should be, whether concurrent or successive, the order of precedence between them, the amount of frequency of payments or any other provisions thereof. For the court to enforce that contract would require it to decide what terms the mortgage or mortgages would contain and thus to create for both parties a contract which, in its essentials, they had never agreed upon, and it was this which the court refused to do.
I would affirm the judgment of specific performance.