Can the Buyer Take Back Her Offer? (Part 2)
This is actually a question which arises all the time. Some people will say “yes” and others will say “no”. Let’s have a look at the sequence of an Offer.
Robert lists his house for sale through Richard at ABC Realty.
Wilma is interested as she has been looking with her agent Christine for several months for a similar property.
10:15 Wilma calls Christine and requests that an Offer be prepared
11:15 the Offer is ready
12:15 they meet and review the Offer
12:45 Wilma approves the Offer
12:50 Wilma signs the Offer
12:55 Wilma turns the Offer over to her Agent, Christine
1:00 Christine leaves with the Offer
1:20 Christine calls Richard and advises that she has an Offer
1:25 Christine sends an email to Richard confirming
1:30 Richard confirms 7:00 pm appointment for presentation
2:00 Christine sends Form 801
5:00 Wilma calls Christine but is unable to reach her
5:05 Wilma calls Christine and leaves a voice message “not to present”
7:30 Christine arrives and leaves Offer
7:45 Christine picks up voice message
7:50 Christine calls Richard to say Wilma’s Offer cannot be accepted
7:55 Robert executes Wilma’s Offer
7:58 Richard calls Christine and advises that Wilma’s Offer was accepted
The Offer was prepared upon a standard Form OREA Agreement of Purchase and Sale. The Agreement was irrevocable until 8:00 pm. There was a deposit specified to be provided “upon acceptance”, which means “within 24 hours”.
Christine says “no deal”. The Offer was revoked when I called at 7:50 pm.
Richard says “we have a deal”. Robert accepted before the irrevocable period expired.
So, who’s right?
In this case, we passed the “witching hour”. That was 7:30 pm. That was the time that the Offer was delivered into the possession of the Listing Agent for the Seller.
The Offer was irrevocable until 8:00 pm.
It was open for acceptance and cannot be revoked, rescinded, cancelled or withdrawn after “delivery”.
In some contracts, there is no consideration for the “irrevocable clause”. That means that it could indeed be revoked at anytime before acceptance. In this case, the Offer was withdrawn at 7:50 pm while acceptance did not take place until 7:58 pm.
So, that’s where the seal comes into play. The legal seal replaces consideration. That meant that the Offer once delivered
could not be revoked prior to 8:00 pm, the time of expiry.
This is an issue which often gives rise to problems.
When we are looking at contracts, “delivery” already took place.
Once that happened, Wilma had transferred possession of the Offer, and control then rested with Robert. In this case, it was simply too late to change her mind.
Brian Madigan LL.B., Broker