Question:
How do you firm up a deal and make it binding?
Answer:
Watch for the correct terminology.
The Agreement was already “binding” and it was “firm”.
However, it contained Conditions.
Whether you are using a Waiver, Notice of Fulfillment or failing to serve a Notice of Termination (NOT) you are now dealing with the contract and making it “unconditional”. That’s the new status, it was conditional and now it’s unconditional.
What is the process?
For a True Condition Precedent, you need a Notice of Fulfillment (NOF) to make it unconditional.
For a Condition Precedent, you need either a Waiver or a Notice of Fulfillment (NOF) to make it unconditional.
For a Condition Subsequent, you relax and do nothing, automatically upon expiration of the time limit it becomes unconditional. If you are not wishing to proceed, then you need a Notice of Termination (NOT).
It could be that no notice whatsoever is require for a True Condition Precedent. Naturally, it would depend precisely how this particular Condition was worded. The Ontario Superior Court of Justice ruled that an agreement was proceeding when a third party made a decision, not at the time of any notice between the parties.
Brian Madigan LL.B., Broker