Deposit due within 1 business day and deposit must be certified/bank draft as per schedule B. The Deposit was $40,000 total. Buyer brings us a 30,000 MONEY ORDER + 10,000 Personal cheque but on time, but the personal cheque is not certified. My seller considers this to be a breach of the agreement and wants to back out of the deal. There’s potentially a back-up Offer which is for more money.
It is not a breach of contract giving the right to terminate the transaction.
It may indeed be a minor breach, but it’s not a breach which gives rise to the right to terminate. Your client should obtain proper legal advice as soon as possible, otherwise this is going to go sour and be a very expensive lesson.
The breach is small, it is modest, it is essentially of no consequence. It was paid “in full” and it was paid on time.
The lack of certification is not significant. There is a positive duty to exercise one’s rights in good faith. There is an expectation that the contract will be performed, according to the Supreme Court of Canada in Bhasin vs. Hrynew (13 November 2014).
The Seller, if overly anxious for certification could have spent $15.00 and cured this problem.
Brian Madigan LL.B., Broker