This dеclaratory judgment action presents two questions concerning a right of first refusal in a contract which, inter alia, granted reciprocal easements in two adjoining tracts of land. The first issue is whether a gift of property to a charitable foundation constitutes a “sale” within the meaning of the right of first refusal because the donors will receive a tax benefit from the gift. The second issue is whether the right of first refusal provision in the contract violated the Rule Against Perpetuities. The Circuit Court for Anne Arundel County (North, J.) declared that the gift was not a “sale” within the purview of the right of first refusal and that the right of first refusal provision did not violate the Rule Against Perpetuities. We agree with the Circuit Court and shall affirm.
I.
James and Lois Bosse own, in fee simple, a 2.53 acre rectangular parcel of land in the Severna Park area of Anne *125 Arundel County. The Bosses’ parcel is contiguous to the Ritchie Highway and is improved by retail establishments.
Park Station Limited Partnership, LLLP, which is the successor to Crow-Park Station Limited Partnership, 1 owns, in fee simple, a 20.97 acre parcel of land which surrounds and abuts the Bosse tract on three sides. The Park Station tract is improved by a large shopping center.
In 1986, the Bosses and Park Station entered into a contract whereby each of the parties granted to the other non-exclusive “reciprocal easements” in the roads, driveways, parking lots, and pedestrian walkways of both tracts, agreed not to erect fences or other barriers along the common boundary lines that would hinder vehicular or pedestrian traffic, agreed upon numbers and locations of parking spaces, agreed upon conditions and “restrictions” for future construction of improvements, agreed upon common use of loading areas and placement of trash dumpsters, agreed to cooperate with regard to utilities, and agreed upon certain “use restrictions.”
The right of first refusal provision was contained in the 12th paragraph of the 1986 contract and stated as follows:
“12. Right of First Refusal. If, at аny time after the date of this Agreement, BOSSE shall desire to sell the BOSSE TRACT or any part thereof, then BOSSE shall give PARK STATION written notice of the desire to sell and the price and terms of sale. PARK STATION shall have thirty (30) days to either accept or reject the offer in writing. In the event PARK STATION fails to accept the offer within said thirty (30) day period, then BOSSE shall be free to sell the BOSSE TRACT or any part thereof to others at a price and upon terms not less favorable to BOSSE than those contained in the written notice to PARK STATION for a period оf six (6) months. If such sale is not so consummated, the terms of this Paragraph 12, again, shall be applicable to BOSSE. In the event PARK STATION fails to accept *126 the offer, PARK STATION agrees to execute and deliver to BOSSE, upon request, a certificate setting forth the fact that PARK STATION has not accepted the offer and that BOSSE is free to sell the property to others at the price and upon the terms set forth in the -written offer.”
In early 2001, the Bosses created a religious foundation, named the Jehovah-Jireh Foundation, Inс. According to the Bosses, the purpose of the Foundation was to provide monetary grants to small churches. The Bosses desired to transfer the Bosse tract to the Foundation, as a gift, in order to provide funding for the Foundation. By letter dated November 15, 2001, the Internal Revenue Service determined that the Foundation was a tax exempt entity and that “Donors may deduct contributions to” the Foundation.
In a July 2001 letter, the Bosses’ attorney notified Park Station that the Bosses intended “to transfer the Bosse Tract without consideration and as a gift to Jehovah-Jireh Foundation, Inc.” The letter went on to express the opinion that the right of first refusal in the 1986 contract “applies to a ‘sale’ and does not apply to a gift.”
Park Station’s attorney replied by letter that the “proposed transfer by Mr. & Mrs. Bosse to Jehovah-Jireh Foundation, Inc., constitutes a ‘sale’ ... under Section 12 of the Agree-ment____” The letter explained this position by stating that “it can be inferred that Mr. and Mrs. Bosse expect to receive a tаx deduction by virtue of the transfer to the Foundation. Thus, Mr. and Mrs. Bosse would indeed be receiving consideration by virtue of the transfer.” The letter from Park Station’s attorney concluded by saying “that my client does indeed intend ... to acquire the Bosse Tract for the same amount being paid by Jehovah-Jireh Foundation.” The letter did not explain what “the same amount being paid by” the Foundation meant.
After further correspondence failed to produce an agreement, the Bosses filed in the Circuit Court for Anne Arundel County a complaint for a declaratory judgment declaring, inter alia, that the proposed gift of the tract to the Founda *127 tion is not covered by paragraph 12 of the 1986 contract and that paragraph 12 “is void and unenforceable in that it violates the Rule Against Perpetuities.” Park Station filed a counterclaim for a declaratory judgment stating, inter alia, that the proposed transfer of the Bosse tract to the Foundation “constitutes a ‘sale’ within the purview of the Right of First Refusal” and that “the provisions of the Right of First Refusal do not violate the Rule Against Perpetuities.”
Thereafter, the Bosses filed a motion for summary judgment and Park Station filed a cross-motion for summary judgment. The motions were based on affidavits and other documents which showed that there were no disputes over material facts.
Following a hearing, the Circuit Court filed a -written opinion and a separate written order declaring that the proposed
“gift of the Bosse Tract to the charitable foundation would not constitute a ‘sale’ within the purview of the right of first refusal contained in paragraph 12 of the Agreement, and that the purported right of first refusal would not apply to such a donative transfer of the Bosse Tract.... ”
The Circuit Court also held that the right of first refusal did not violate the Rule Against Perpetuities, stating:
“ ‘A contract should be interpreted if feasible to avoid the conclusion that it violates the Rule Against Perpetuities ... under the doctrine that a construction should be favored which gives effect to intention rather than one which defeats it.’ Stewart v. Tuli,82 Md.App. 726 , 735-736,573 A.2d 109 (1990). . . .
“The Rule is not violated by the terms of the Right of First Refusal in parаgraph 12. The contract states that the term Bosse refers to James F. Bosse and Lois F. Bosse. Paragraph 12 states ‘[i]f, at any time after the date of this Agreement, Bosse shall desire to sell.... ’ Although the words ‘[i]f at any time’ indicate at any time in the present or future, the words ‘Bosse shall desire to sell’ require Plaintiffs to desire to sell. It goes without saying, that Plaintiffs cannot desire to sell their property when they are dead. *128 Therefore, they must formulate the desire to sell within their lifetimes.
“Legal title is vested in Plaintiffs unless they sell or die. 1 In Ferrero [Construction Co. v. Dennis Rourke Corp.,311 Md. 560 ,536 A.2d 1137 (1988) ], the contract was between two corporations with perpetual existences. In this case, we have two lives in being____The law requires the Court to interpret this contract, if feasible, to avoid the conclusion that the Rule has been violated.
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Park State appealed and the Bosses cross-appealed to the Court of Special Appeals. Prior to any proceedings in the Court of Special Appeals, this Court issued a writ of certiorari.
Park Station v. Bosse,
II.
Park Station reiterates its argument below that, with “the Bosses receiving valuable consideration in the form of [a] tax benefit,” the proposed “conveyance to the Foundation ... is á sale within the confines of the Right of First Refusal.” (Appellant’s brief at 9). Park Station insists that a transfer of property is a “sale,” rather than a “gift,” whenever a donor “will receive recompense from the conveyance of the property ... in the form of tax benefits which are of obvious value.” (Appellant’s reply brief at 6). Park Station cites nо authority, from Maryland or elsewhere, in support of this proposition.
This Court has both defined the word “sale” and pointed out that it is to be given its common meaning as used by ordinary persons in every day life. Thus, in
Eastern Shore Trust Co. v.
*129
Lockerman,
“To sell means ordinarily to transfer to another for a valuable consideration the title or the right to possess property. Certainly few words are more commonly used in commercial transactions than ‘buy’ and ‘sell,’ and it has not been supposed that they amounted to any more than a simple desсription of one of the commonest incidents of every day life, and if Lockerman, as he says he did, transferred the title to his pears to the brokerage company, for a stated price, and received a part of that price, the transaction was a sale, and there is no apparent reason why he should not have so described it.”
A similar point was made by the Supreme Court of the United States in
Commissioner of Internal Revenue v. Brown,
“A ‘sale,’ however, is a common event in the non-tax world; and since it is used in the Code without limiting dеfinition and without legislative history indicating a contrary result, its common and ordinary meaning should at least be persuasive of its meaning as used in the Internal Revenue Code. ‘Generally speaking, the language in the Revenue Act, just as in any statute, is to be given its ordinary meaning, and the words “sale” and “exchange” are not to be read any differently.’
“ ‘A sale, in the ordinary sense of the word, is a transfer of property for a fixed price in money or its equivalent,’ Iowa v. McFarland,110 U.S. 471 , 478[,4 S.Ct. 210 , 214,28 L.Ed. 198 ]; it is a contract ‘to pass rights of property for money, — which the buyer pays or promises to pay to the seller ...,’ Williamson v. Berry,8 How. 495 , 544,12 L.Ed. 1170 . Compare the definition of ‘sale’ in § 1(2) of the Uniform Sales Act and in § 2-106(1) of the Uniform Commercial Code. The transaction which occurred in this case *130 was obviously a transfer of property for a fixed price payable in money.”
This Court in
Straley v. Osborne,
Certainly the proposed transfer of the Bosse tract to the Foundation, with no consideration being paid by or on behalf of the Foundation, would be viewed as a gift, and not a sale, by ordinary рersons applying the common meaning of the term “sale.” The proposed transfer is very similar to the transfer involved in Straley v. Osborne, supra.
Furthermore, for the transfer of property to be regarded as a “sale,” ordinarily the consideration must be “intended by the parties to serve” as consideration for the transfer. A collateral benefit to the transferor having an entirely different “purpose” is generally not sufficient to make the transfer a “sale.”
Grinnell Corporation v. United States,
A gift, however, does nоt involve consideration by or on behalf of the donee. Rather, “[t]he requirements for a valid
inter vivos
gift are an intention on the part of the donor to transfer the property, a delivery by the donor and an acceptance by the donee. Moreover, the delivery must transfer the donor’s dominion over the property.”
Rogers v. Rogers,
A “ ‘sale’ differs from [a] ‘gift’ in that the latter transaction involves no return or recompense for the thing transferred.”
Black’s Law Dictionary, supra,
at 1337.
See Rosenberg v. State,
The proposed transfer from the Bosses to the Foundation involves no consideration from or on behalf of the Foundation. Under the general principles set forth above, it is clearly a gift and not a sale. This Court once pointed out that “[w]here all the elements of ... a sale exist, it cannot be made anything else by calling it a different name.”
Albert v. Lindau,
Finally, to the extent that the issue has arisen in other states, the courts have consistently held that a transfer of property by gift does not trigger a right of first refusal based upon a “sale” or decision to “sell.” Thus, in
Mericle v. Wolf and Sacred Heart
Hospital,
In
Bennett v. Dove,
“The parties used the words ‘desires to sell’ to express their intent. ‘Sell’ is commonly and ordinarily understood *133 to mean an act of giving up property for money that the buyer either pays or promises to pay in the future, Webster’s Third New International Dictionary (P.B. Gove Ed., 1976), and we must conclude that Robert Dove did not sell the property when he gave it to two of his children.
“Accordingly, we conclude that the conveyance, a gift, did not violate Mabel Bennett’s preemptive right. Her right did not ripen because Robert Dove never attempted or desired to sell his property.”
The Supreme Court of Idaho reached the same conclusion in
Isaacson v. First Security Bank of Utah,
*134 Judge North of the Circuit Court for Anne Arundel County correctly declared that the gift of the Bosse tract to the Foundation did not trigger the right of first refusal contained in the 1986 contract.
III.
The Bosses’ cross-appeal challenges the Circuit Court’s decision that the right of first refusal provision does not violate the Rule Against Perpetuities.
“As rights of first refusal are interests in property, the great majority of American jurisdictions have applied the Rule Against Perpetuities to such rights. * * * We choose to follow the majority of courts that apply the Rule Against Perpetuities to rights of first refusal.”
Ferrero Construction Co. v. Dennis Rourke Corp.,
“Except for а few statutory modifications, Maryland retains the common law Rule Against Perpetuities. Ferrero Constr. v. Dennis Rourke Corp.,311 Md. 560 , 564,536 A.2d 1137 , 1139 (1988). While generally the Rule does not apply to contracts, nevertheless if a contract creates an equitable right in real property, enforceable by specific performance, the contract is subject to the Rule. Gray, The Rule Against Perpetuities, § 329 (4th ed.1942); Thompson, Real Property, § 2020 (1979). Thus, this Court has previously held that the Rule applies to an option contract to purchase land, Commonwealth Realty v. Bowers,261 Md. 285 ,274 A.2d 353 (1971), and to a right of first refusal to purchase an interest in property, Ferrero Constr. v. Dennis Rourke Corp., supra.
“As a formulation of the Rule Against Perpetuities, orn-eases have adopted Professor Gray’s statement that ‘[n]o interest is good unless it must vest, if at all, not later than twenty-one years after some life in being at the creation of the interest.’ Fitzpatrick v. Mer.-Safe, Etc. Co.,220 Md. 534 , 541,155 A.2d 702 , 705 (1959), quoting Gray, supra, *135 § 201. The Court pointed out in Fitzpatrick,220 Md. at 541 ,155 A.2d at 705 , that the Rule does not invalidate ‘interests which last too long, but interests which vest too remotely; in other words the Rule is not concerned with the duration of estates, but the time of their vesting.’ ”
See also Ayres v. Townsend,
The Circuit Court in the case at bar held that the right of first refusal in paragraph 12 of the 1986 contract would either vest or be extinguished when the “Bosse[s]” could no longer “desire to sell” the property. Accordingly, at the latest, the right could not continue after the deaths of the Bosses. It would vest, if at all, during a life in being, ie., the last of the two Bosses to die, and thus would not violate the Rule Against Perpetuities. Of course, under the Circuit Court’s holding, if the proposed gift to the Foundation tаkes place, and if the property is never returned to the Bosses, the right will be extinguished, as the Bosses will no longer have the ability to sell the property. In reaching its conclusions, the Circuit Court held that the critical words of paragraph 12, ie., “[i]f ... Bosse shall desire to sell the Bosse .Tract,” do not encompass a desire to sell by the Bosses’ successors or assigns.
The challenge to the Circuit Court’s decision regarding the Rule Against Perpetuities is based on the court’s conclusion that the above-quoted words of paragraph 12 do not include *136 the Bosses’ successors or assigns. The Bosses rely on the provisions of paragraph 10 of the 1986 contract which state:
“10. Nature of Rights Granted. The easements, restrictions, benefits and obligations set forth in this Agreement shall create mutual and reciprocal easements, restrictions, benefits and servitudes upon the PARK STATION TRACT and the BOSSE TRACT, running with the land, which shall be perpetual, and shall, except as herein set forth, inure to the benefit of, and be binding upon, the parties hereto аnd their respective successors in ownership of the PARK STATION TRACT and the BOSSE TRACT.”
The Bosses insist that, because of paragraph 10, the right of first refusal will be perpetual, binding all successors of the Bosses, and remaining a right for all successors of Park Station. In the Bosses’ view, the right of first refusal may never vest or be extinguished, and therefore it violates the Rule Against Perpetuities.
The provisions of the 1986 contract granting reciprocal easements, containing a multitude of specific agreed-upon “restrictions,” and сontaining agreements concerning each party’s continuing use of the tracts, are set forth in paragraphs 1 through 5, 8-9, and 11 of the contract. None of these paragraphs has its own reference to “successors or assigns.” These appear to be the paragraphs to which paragraph 10, referring to “easements, restrictions, benefits and obligations,” and binding “successors or assigns,” seems to apply. They are all provisions concerning the day-to-day use and governancе of both tracts.
Paragraphs 6 and 7, however, relating to an injunction to restrain a violation of the contract and amendment of the contract, are in a different category. They do not concern the daily use of the properties, and they each have their own clauses binding “successors or assigns.” Similarly, paragraph 12 does not concern the daily use of the property, but grants an interest which can only vest one time in the future. As pointed out by the Circuit Court, the reference to “suсcessors or assigns” in paragraphs 6 and 7, and the omission of this *137 language in paragraph 12, suggests that the word “Bosse” in paragraph 12 was intended to be personal and not intended to encompass successors or assigns.
This conclusion is reinforced by the principle, applied in numerous cases, that rights of first refusal are presumed to be personal and are not ordinarily construed as transferable or assignable unless the particular clause granting the right refers to successors or assigns оr the instrument otherwise clearly shows that the right was intended to be transferable or assignable.
See, e.g., Roemhild v. Jones,
In addition, as also stated by the Circuit Court, a contract or other instrument “ ‘should be interpreted if feasible to avoid the conclusion that it violates the Rule Against Perpetuities,’ ”
Stewart v. Tuli,
For the above stated reasons, paragraph 12 of the 1986 contract does not violate the Rule Against Perpetuities.
JUDGMENT OF THE CIRCUIT COURT FOR ANNE ARUNDEL COUNTY AFFIRMED. EACH SIDE TO PAY ITS OWN COSTS.
Notes
. Hereafter, both Park Stаtion Limited Partnership, LLLP, and Crow-Park Station Limited Partnership, will be referred to simply as "Park Station” without distinguishing between them.
“Although paragraphs 6 and 7 refer to ‘respective successors or assigns,’ paragraph 12 does not. Also, paragraph 6 refers only to rights to enforce the contract, not to a desire to sell. Paragraph 7 refers to amendments to the contract being acknowledged by the parties or their respective successors or assigns. Only Plaintiffs can formulate a desire to sell.”