Back Bay Spas, Inc. v. 441 Stuart Marketing, LLC, 688 F.3d 61

Back Bay Spas seeks specific performance of the October 2005 Letter Agreement to buy Commercial Unit B in a building slated for condo conversion.
Associates needed the lender Corus Bank's written consent for a sale; no consent document was obtained despite explicit limitations in the loan documents.
Foreclosure of the Corus Bank loan in 2009 led to the Bank’s winner’s bid and creation of Marketing, a subsidiary taking title to the property.
Back Bay argued Massachusetts Gen. Laws ch. 183A, § 22 (condominium development lender liability) required Marketing to honor the Letter Agreement.
The district court rejected § 22’s applicability and rejected consent-by-silence as a basis for enforcement; it granted Marketing summary judgment.
On appeal, Back Bay abandoned consent-based theories and pressed § 22; the First Circuit affirmed, ruling § 22 does not govern this case and consent could not be implied.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Does § 22 apply to require Marketing to perform the Letter Agreement?	Back Bay: Marketing, as lender successor, must honor tenant obligations under § 22.	Marketing/Bank: § 22 does not apply; no successor liability to enforce the Letter Agreement.	No, § 22 does not govern; affirm summary judgment for Marketing.
Was consent by the Bank required and can it be inferred from conduct or silence under § 22?	Back Bay contends Bank’s conduct/silence evidenced consent to the Letter Agreement.	Marketing: explicit written consent is required; silence cannot substitute for consent; record shows no consent.	Consent cannot be inferred; § 22 not invoked to compel performance.
Was Back Bay's new argument preserved for appellate review?	Back Bay preserved the consent-based theory below and appeals it.	Bank did not object; new theory raised for first time on appeal; waived.	New theory not preserved; cannot be considered; affirmed.

Barry v. Moran, 661 F.3d 696 (1st Cir. 2011) (de novo review of summary judgment standard)
Sotirion v. United States, 617 F.3d 27 (1st Cir. 2010) (leading to the rule against raising new arguments on appeal)
Teamsters Local No. 59 v. Superline Transp. Co., 953 F.2d 17 (1st Cir. 1992) (principle that new legal theories not raised below are typically not considered on appeal)
Rizika v. Donovan, 695 N.E.2d 1097 (Mass. App. Ct. 1998) (extrinsic evidence of a condition precedent may be implied from circumstances)
Tilo Roofing Co. v. Pellerin, 122 N.E.2d 460 (Mass. 1954) (express condition precedent may be shown by parol evidence)
Harrington v. Fall River Hous. Auth., 538 N.E.2d 24 (Mass. App. Ct. 1989) (parol or written integration considerations in contract interpretation)
Kobayashi v. Orion Ventures, Inc., 678 N.E.2d 180 (Mass. App. Ct. 1997) (parol evidence rules and contract interpretations in Massachusetts courts)