Confirmation of Acceptance and Who Signs

The purpose of the Confirmation of Acceptance (COA) is to set the clock running. It’s not a document which exists in many jurisdictions, but it is used in Ontario.

The COA is not technically part of the contract documents themselves, it is “extra” and it can be helpful since it points to the “starting gun”.

There are two important matters which commence at the time of commencement of the contract:

  1. Delivery of the deposit, and
  2. Conditions which are measured in time.

Frequently, the deposit is to be delivered “upon acceptance”. That expression is further defined to mean “within 24 hours”. So, if a contract was struck at 7:47 pm, then, the Buyer would have until 7:46:59 the following day to deliver the deposit, otherwise, they would be in breach of contract. Kindly note, that the “time period” was stated to be “within”, that means that the full 24 hours would be one second short.

The next circumstance is the commencement of the conditions. While a specified “due date” may be best practice since it avoids the issue of the calculation of the time, sometimes, the end time for the conditions, ie. financing, inspection or appraisal does require some computation. The time period might be expressed in days, calendar days, business days or banking days. The preference here would simply be to use calendar days. That’s always clear. This year we had an extra day, namely the Truth and Reconciliation Federal Holiday which naturally affected Banks. The problem was that it didn’t appear in anyone’s calendar at the beginning of the year.

This leaves us with the issue of the start of the contract for the purpose of computing whatever numbers of days are in those conditions. We can’t know the end, unless we know the beginning.

The current version of the standard form Agreement of Purchase and Sale by the Ontario Real Estate Association (OREA) includes a “Confirmation of Acceptance”.

This statement appears below the signature lines for the parties, and this is what it says:

Confirmation of Acceptance: Notwithstanding anything contained herein to the contrary, I confirm this Agreement with all changes both typed and written was finally accepted by all parties at _____am/pm this _____ day of _____20xx.

_____________

(Signature of Seller or Buyer)

Time

We are actually looking for the precise time to be inserted here, to start the contract. This should be the best evidence available.

Signed By Whom

It should be the Offeree. That’s the person who knows. The Offeror only knows when the Offer was sent.

When

Acceptance is a two-step process: 1) signing, and 2) communication. You can’t just sign, and keep the information to yourself. You have to tell the other side before the expiry of the irrevocable period.

Timing

After the communication has taken place, the Offeror knows that their Offer has been accepted and we have a binding agreement between the two parties. This is the “time” which should be placed in the COA. It’s not the time that the Offeree signed the document. That was just step 1: execution.

How Many Signatures

Just one, one’s enough. We just require one person to state the time. Remember, this is the “starting gun” for the contract. It’s not the contract, so if an Offer went to Bob and Mary, the Sellers, and they accepted it, then since it’s not part of the contract, only one of them needs to sign. But, it does have to be someone who knew that they both signed!

You will notice that the standard Agreement includes space for two Buyers and two Sellers, but the COA only has space for one person. That means that we only require the statement to be made by one person. That will be the person who knows of the “acceptance”.

Previously, when OREA had the Confirmation of Execution (COE), prior to 2008, it was the last person to sign. That was fine, but who really cares? We need the start of the contract, and that was acceptance. Unfortunately, OREA didn’t explain the difference when the COA was brought in, so, mistakenly, many still think that it’s the “last person to sign”.

Brian Madigan LL.B., Broker

www.OntarioRealEstateSource.com

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