This is an interesting issue. There are several approaches to this, and ultimately no correct answer.
Bob, the Buyer, and Sam, the Seller, strike a deal on a house. They have set out in their agreement in various clauses that Bill will have until 15 April to get financing, 18 April to have a home inspection, 25 May to search title and 31 May to close the deal.
Now we have a problem. Bob has suddenly been called out of town to help out with an emergency. This will take about one month. He needs a month extension on just about everything. Sam is ecstatic about this request. His new place won’t be ready in time, and this saves him a short term rental.
The Simple Date Adjustment
The parties hereby agree to amend the agreement by substituting the following dates:
Financing Condition: 15 May
Home Inspection: 18 May
Requisitions: 25 June
Completion: 30 June
Slightly More Complicated Date Adjustment
The parties hereby agree to amend the agreement by extending the dates set out below:
Financing Condition: from 15 April to15 May
Home Inspection: from 18 April to 18 May
Requisitions: from 25 May to 25 June
Completion: from 31 May to 30 June
Amend Each Provision Separately
This time, you will have four separate documents, all dealing with one individual issue. At the end, you will have lots of paper.
Delete and Insert
With this approach, you simply set out a series of instructions for someone to follow.
This Agreement shall be amended as follows:
Paragraph x: delete 15 April and insert 15 May
Paragraph y: delete 18 April and insert 18 May
Paragraph z : delete 25 May and insert 25 June
Paragraph xx: delete 31 May and insert 30 June
Full Paragraph Deletion and Full Paragraph Insertion
With this approach, you will go to the original agreement, delete the entire paragraph and then come along and replace the entire paragraph with something which is identical in all respects except for the fact that it incorporates the new date.
Let’s look at the financing condition:
This Offer is conditional upon the Buyer arranging, at the Buyer’s own expense, a new first Charge/Mortgage satisfactory to the Buyer in the Buyer’s sole and absolute discretion. Unless the Buyer gives notice in writing delivered to the Seller personally or in accordance with any other provisions for the delivery of notice in this Agreement of Purchase and Sale or any Schedule thereto not later than 5:00 p.m. on the 15th day of April, 2022, that this condition is fulfilled, this Offer shall be null and void and the deposit shall be returned to the Buyer in full without deduction. This condition is included for the benefit of the Buyer and may be waived at the Buyer’s sole option by notice in writing to the Seller as aforesaid within the time period stated herein.
This Offer is conditional upon the Buyer arranging, at the Buyer’s own expense, a new first Charge/Mortgage satisfactory to the Buyer in the Buyer’s sole and absolute discretion. Unless the Buyer gives notice in writing delivered to the Seller personally or in accordance with any other provisions for the delivery of notice in this Agreement of Purchase and Sale or any Schedule thereto not later than 5:00 p.m. on the 15th day of May, 2022, that this condition is fulfilled, this Offer shall be null and void and the deposit shall be returned to the Buyer in full without deduction. This condition is included for the benefit of the Buyer and may be waived at the Buyer’s sole option by notice in writing to the Seller as aforesaid within the time period stated herein.
So, if you were undertaking an amendment, using this approach, you would draft an Amendment deleting the Original and inserting the Replacement.
How did they do it in the good old days?
Well, if you are going right back in time to the “stone chippers”, they tried to use as few words as possible, in order to get the point across. So, in the days of Hammurabi (1792 BC), the simple date adjustment method would be used. Don’t say anything more than you have to, there’s only so much room on this rock!
Let’s move to the Middle Ages, what did they do then? These were the days of 50 and 60 page Deeds and so on. Conveyancers were an elite class of literate people. They could read and write, and they were also calligraphers. Their handwriting was “beautiful. They were paid by the word. That meant that they would use “give, devise and bequeath” when they could have just said “give”. But, then, they could only charge for one word rather than four! So, I think you know the answer here.
Typewriters and the Modern Era
By the 20th century typewriters were used for most types of important business contracts. Offers to Purchase were prepared on standard pre-printed forms. Initially, a property Form with “fill in the blanks” lines was one page, legal length. Then, it went over slightly to the second page, and used up about one quarter of that page. If you needed to say anything else you added schedule or an extra page.
Since space was at such a premium, someone drafting an agreement would have to be creative and insightful when it came to the use of words.
Computers and Word Processing Software
While IBM Selectric 2 and “mag cards” were available in the early 1970’s, they weren’t in common usage for almost a decade. Some typists were so fast that the “mag cards” really couldn’t keep up. Price was also a big factor, since these typewriters cost about $10,000.00.
By the mid 1980’s, stand – alone computers operating on WordPerfect and MS Word were available. So, by this point in time, if you really wanted to, you had the technology to change the date, by putting it in the original, amending the original by posting the entire clause once again, deleting it, then, put the entire clause back in again, from start to finish.
Just remember, the stonechippers couldn’t do that and the calligraphers just didn’t think of it. But, as you might imagine, they would have just loved it! Sixty page documents with a few small changes might suddenly increase to 150 pages or more. If you are charging by the page, you’d love it. If you are paying by the page, you might say: “why do we need all this stuff?”
Changes in the Education System
In the ‘60’s and ‘70’s, a prospective real estate agent would have to read the Act and write a short exam. Some Brokerages offered night classes, one day a week for 6 weeks, to read through the Act, so that candidates would be ready.
Then, the educational requirements became somewhat more institutionalized. The Ontario Real Estate Association taught courses to prospective candidates. Real estate became a self-governing profession with the advent of the Real Estate Council of Ontario.
Then, just about everybody thought that they should be an agent or at least someone in their own family should be an agent. It was “easy money” and “there wasn’t much to learn”, and “how hard could this be”, because basically “houses sell themselves”.
That’s very interesting, because now we have over 103,000 registered real estate professionals in Ontario. And, that’s with thousands leaving every year because “it didn’t pan out”, and with thousands more arriving with their “hopes and dreams”.
This means that we have a big problem. There are a lot of people who are not doing many deals. There are a lot of people who don’t know how to draft clauses. Rather than teaching agents how to draft clauses, OREA went with the “lowest common denominator approach”. This meant, keep it very simple:
- Put the whole clause in.
- If you need to change something, then,
- take the whole clause out, and then,
- put the whole new clause back in.
Foolproof, anybody could do that! What could go wrong?
This means, of course, that OREA is training a generation of “technologists”. It’s very “mechanical”. There’s no creative thinking necessary. That should work for everybody.
Which Way is Correct?
They are both correct. They both work! There’s no right answer here. Creative thinkers who are problem solvers and “wordsmiths” will draft their own simple document.
The test is, of course, the Trial Judge. Can you imagine a Trial Judge who couldn’t figure out what you were saying if you used any of the language mentioned here?
The OREA approach isn’t followed in other jurisdictions nor is it followed by the legal profession in Ontario. However, it’s straightforward and usually will not result in errors.
This means that everyone who has entered the profession since 1985, will have been taught the OREA “delete and insert in its entirety” method. The same appears to be the case with Humber College now that it has taken over from OREA with respect to pre-registration education and training.
Changes in Commercial Contracts
Commercial contracts which require small changes are amended all the time. If you can imagine an extensive 27,000 page commercial contract involving billions of dollars, do you think that they use:
- the simple change approach, or
- the delete and insert everything approach?
Brian Madigan LL.B., Broker