I am acting for the Seller and we received a fairly good Offer, open until midnight. We actually signed it back at 8:00 pm, and afterwards my Seller had second thoughts. Can the Seller still accept it before midnight?
No, there were several choices available:
- Accept it,
- Ignore it, and let it expire,
- Reject it by indicating that it will not be accepted,
- Counter it, which is also a rejection at the same time.
There is one exception. Prior to submitting the Counter Offer, you could have made it quite clear:
“This Counter Offer is submitted without prejudice to the Seller’s right to accept the Offer as submitted.
This counter Offer is not a rejection of the Offer. The Offer may still be accepted prior to expiration of the irrevocable period.”
Rarely, if ever, is such a consideration contemplated at the relevant time. This is simply a question of remorse on the part of the Seller and without this type of wording, the Counter Offer is a rejection of the Offer.
Brian Madigan LL.B., Broker