This is the Conflict or Discrepancy paragraph:
“13. CONFLICT OR DISCREPANCY: If there is any conflict or discrepancy between any provision added to this Agreement (including any Schedule attached hereto) and any provision in the standard pre-set portion hereof, the added provision shall supersede the standard pre-set provision to the extent of such conflict or discrepancy. This Agreement, including any Schedule attached hereto, shall constitute the entire Agreement between the Seller and the Listing Brokerage. There is no representation, warranty, collateral agreement or condition which affects this Agreement other than as expressed herein.”
Review
Set out below and marked in bold and italics are those words that are inserted by me to assist in the review. They are not set out in the clause itself. Let’s look at that paragraph in a little more detail:
13. CONFLICT OR DISCREPANCY:
Conflicts
If there is any conflict or discrepancy between
- any provision added to this Agreement
- (including any Schedule attached hereto)
and any provision in the standard pre-set portion hereof,
Added Provision Supersedes Standard
the added provision shall supersede the standard pre-set provision to the extent of such conflict or discrepancy.
Entire Agreement
This Agreement, including any Schedule attached hereto,
shall constitute the entire Agreement
between the Seller and the Listing Brokerage.
There is no
- representation,
- warranty,
- collateral agreement or
- condition
which affects this Agreement other than as expressed herein.
COMMENT
This provision sets out that the added paragraphs will supersede the standard provisions in the case of conflict.
Basically, that means that you can add something and be certain that the provision will prevail. It’s not necessary to go back through the standard form and make all kinds of changes.
Also, it means that whatever you decide, better be correct, comprehensive and well-thought out. Otherwise, it can create confusion.
So, your location for changes should be Schedule “A”. Place any matters for amendment or for certainty in there.
In addition, buried in that paragraph, is the “entire agreement” provision. This is it! This is all there is. There are no statements. There are no side agreements. There are no representations. Everything is right here for you to read. If it’s not “in writing”, then it doesn’t exist.
Now, of course, there is a duty placed upon the real estate agent to draft up a correct, comprehensive and accurate agreement. Obviously, don’t leave anything out. Otherwise, that may constitute negligence and result in a claim against the agent and the Brokerage.
Brian Madigan LL.B., Broker