Survive and Not Merge
If there is an executory contract, like an Agreement of Purchase and Sale, that is, the contract is struck, but the deal will be closed later, then upon closing the contract is finished. It’s just the same as if it were ripped up.
So, if there is to be some kind of warranty which doesn’t apply until afterwards, it would need to be made clear that that was the intention, otherwise “it’s gone”.
"The parties agree that this representation and warranty shall survive and not merge on completion of this transaction,….”.
These are the words that make intention clear. Yes, indeed, this warranty was intended to apply after closing.
Then, we come to the next part:
“but apply only to the state of the property existing at completion of this transaction."
The condition is the actual condition on closing. There’s really nothing specifying extra days here. So, on closing the appliances work, but a few days later, that would be an issue.
If you were buying a house with a swimming pool in January, you need the first part to get past the closing date in February, but, that’s not much help. You would need a warranty that would run to May when the pool could be opened. A one day warranty in February really wouldn’t be worth much.
Brian Madigan LL.B., Broker