Possibility of a Verbal Agreement Being in Writing (Ontario)

Contracts statute of frauds

Question:

A deal was negotiated and accepted verbally. Paperwork signed by buyer and sent back for the confirmation of acceptance.

Listing agent calls to say they got a better offer and wants to give the Buyer the opportunity to bid more. Is that legal?

Answer:

I’m not quite sure what happened here. If this is just all verbal discussions, then you are still negotiating. That’s been fairly clear since the 1600’s. There’s nothing here new on that front.

You say it was “accepted”. Do you know that for certain? Did the Listing Agent communicate the acceptance of the written Offer? If that’s the case then you have a deal, provided in fact the contract left the custody of the Seller and was provided to the Listing Agent for delivery to the Buyer’s Agent.

If that’s the case, then we have an “agreement in writing”, and the Seller has already parted with possession. The Listing Agent has the Buyer’s copy in his possession. There is no escrow here. Communication already took place!

The Confirmation of Acceptance has nothing to do with it. Yes, we have bad paperwork, but there is still a valid contract between the parties. That means they can’t change their minds.

On the other hand, if it was all just “talk”, then you have nothing.

There are two elements of acceptance:

  1. Signing, and
  2. Communicating to the offeror that the contract was accepted within the irrevocable period.

Both steps are important. It is a question of proof. It’s important to appreciate that the Agreement might indeed have been in writing and the Buyer’s copy was simply still in the possession of the Seller’s Agent. The moment the Seller’s Agent communicated the existence of the “acceptance”, there was a “deal”.

Brian Madigan LL.B., Broker

www.OntarioRealEstateSource.com

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