Agreement: Deposit Default Delivery Clause


What about the following clause in Schedule “B” from the Listing Brokerage (not so much from the grammatical correctness standpoint). I am representing the Buyer.

“This Offer is subject to the above mentioned deposit cheque being deliver to the Listing Broker’s office by the cooperating Broker/Agent within one (1) banking day from the time stated in the section of “Confirmation of Execution” of this Agreement of Purchase and Sale, if however the deposit cheque is not deliver within the stated time period then this offer will become null and void and the Seller(s) shall have the right to offer the property for sale again without any consent and/or release from the Buyer(s). In addition the Seller(s) will have the right to accept the new offer. The Buyer(s) also acknowledges and fully understands that in such event, and without prejudice to or limiting the rights and obligations of the Seller(s), the Seller(s) may also claim for damages upon the default of the Buyer(s) covenants and obligations to be performed under this Agreement of Purchase and Sale. This condition is deemed to be waived automatically if the Listing Broker/Agent receive the said deposit cheque from the Buyer(s) or cooperating Broker/Agent within one banking day.”


This clause contains many grammatical errors, however, there’s far more wrong with this, than just the grammar.

They have the contract going “null and void”. They really don’t want that because the Seller loses all his rights.

They want to Seller to have the option to terminate. Once the Buyer is in default, the Seller is entitled to elect their remedies, including the right to sell to another buyer without notice to the first buyer. Here, everything happens automatically and the Seller loses all their rights.

Certainly, it would have be helpful had the person who drafted up this clause actually known the law.

What a great clause for a Seller, to be included by their own agent!

Brian Madigan LL.B., Broker

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