This issue has been debated in Ontario real estate circles for decades and surprisingly, it still causes confusion today. At its core is a simple question:
What do we actually call the deal, and from what date does it exist?
How It All Started
The roots of this problem go back to the 1970s. At that time, a well-known lawyer and gifted wordsmith, Edmund Brown, was retained by Dye & Durham (a legal stationer) to draft a standard real estate document. The name chosen was clear and accurate:
“Offer to Purchase.”
Later, Brown was retained by a competing stationer, Newsome & Gilbert, to draft a similar document. There was one small hitch, the phrase “Offer to Purchase” was already in use for Dye & Durham. The solution was a new title, with only modest changes in wording:
“Agreement of Purchase and Sale.”
Different name, similar content but in substance, it was still just an offer until accepted.
When Does an Offer Become an Agreement?
That raised the next question: once a deal is struck, how do we refer to the document?
Under the Dye & Durham form, the key reference point was the date of acceptance. The original offer date didn’t really matter once the offer was accepted and a binding contract was formed.
This issue was discussed at a Law Society forum, where John Arnup confirmed the principle:
👉 The operative date of the contract is the date of acceptance, regardless of which form was used.
That logic applied equally to both Dye & Durham and Newsome & Gilbert documents.
Enter OREA
In the mid-1980s, the Ontario Real Estate Association (OREA) entered the picture. OREA obtained a licence to use the Newsome & Gilbert documents and then began making its own revisions.
One of those changes was subtle but significant. The form date effectively became tied to the moment the “buyer’s agent first drafted the document”, rather than the moment the deal was actually made.
That leads to some rather odd results.
We Only Have One Name—But It’s Not Quite Right
Today, we effectively use only one name for contracts dealing with the sale of land:
“Agreement of Purchase and Sale.”
But that label ignores an important reality:
- At the beginning, it’s merely an offer
- Only upon acceptance does it become an agreement
Even OREA’s own Form 100 reflects this tension. The word “offer” appears repeatedly throughout the document, even after acceptance.
Consider the standard home inspection clause, which states:
“This Offer is conditional upon the inspection of the subject property…”
At that point, the document is no longer an offer in the true legal sense. It is a conditional agreement a binding contract, subject to conditions.
Yet the language persists.
The Bigger Problem: The Date of the Agreement
The naming issue becomes even more problematic when we look at dates.
Here’s a real-world scenario:
- 15 November – Buyer’s agent drafts an offer (buyer lacks funds; nothing is submitted)
- 22 February – The offer is finally submitted to the seller
- 17 March – After negotiations, the seller accepts
Legally speaking:
- 15 November: no contract
- 22 February: negotiations
- 17 March: contract formed
Yet under current practice, the deal is often referred to as the “15 November Agreement.”
That makes little sense.
Until acceptance on 17 March, the parties were simply negotiating. There was no agreement, conditional or otherwise.
So, What Should We Call the Deal?
A more logical approach would be:
- Call it an Offer until it is accepted
- Call it an Agreement once acceptance occurs
- Refer to the deal by the date of acceptance, not the date the first draft was typed, just like John Arnup said.
After all, 17 March is the day the legal relationship was created. That is the date the deal was made.
Considerations
Words matter in contracts—and so do dates.
Calling everything an Agreement of Purchase and Sale from the outset blurs an important legal distinction. Referring to deals by a pre-acceptance date only adds more to the confusion.
Until acceptance, there is no agreement, only negotiations.
Once acceptance occurs, that is the deal, and that date should matter and be referenced going forward.
Brian Madigan LL.B., Broker
www.OntarioRealEstateSource.com