“Fiduciary Relationship” If you are in a fiduciary relationship with a buyer and intend to use the standard form Agreement of Purchase and Sale, then there are certain “modifications” that you must make in order to fulfill your fiduciary duty or be held accountable for failing to do so.

Consider the following:

“Adhesion Contract” is a legally binding agreement between two parties to do a certain thing, in which one side has all the bargaining power and uses it to write the contract primarily to his or her advantage.

The standard form “Agreement of Purchase and Sale”, therefore is an "adhesion contract" that has been traditionally weighted in favour of the seller, a holdover from the days when it was mistakenly believed that everyone worked for the Seller.

The legal difficulty with an adhesion contract often begins when the seller endeavours to control the buyer via the fine print contained in the preprinted terms of the standard form contract.

The language of the entire standard form contract, including the fine print, the terms of which are not carefully examined and/or interpreted by the buyer or their agent, upon whom the buyer relies and can hold responsible, often protects the sellers and the seller’s agents from any legal ramifications.

“Contra Proferentem” is a legal doctrine intended to provide guidance to the Courts in the interpretation of contracts.

Therefore, in the event the Court is required to interpret and determine the meaning of any ambiguities as may be contained within the standard form Agreement of Purchase and Sale, they will do so in favour of the party who:

1) did not draft the contract,
2) did not propose the wording, and
3) did not insist upon its inclusion.

Consequently, the contract is construed, or interpreted against the interests of the drafting party,namely your buyer.


“Caveat Emptor” is a legal doctrine which loosely translated meaning Buyer Beware. This doctrine places the onus upon the buyer and their agent’s fiduciary duty to utilize their best efforts and apply their due diligence and to make the appropriate and necessary "modifications" to the standard form Agreement of Purchase and Sale, in the best interest of their client, failing which the buyer’s agent can be held accountable.


Ask Yourself:

1. What “amendments” do I have to initially make to the preprinted standard form?

2. What “deletions” do I have to initially make to the preprinted standard form?

3. What “insertions” do I have to initially make to the preprinted standard form?

4. What “disclosure” documents should I have on file indicating my full and timely disclosure of all relevant and material facts in relation to the transaction and the acknowledgement of same ?

5. What “directions” should I have on file indicating that I was instructed and acted pursuant to my clients written and lawful instructions.

6. If, I was required to produce the initial offer, would it indicated that I was in full compliance with my fiduciary obligations to the client.

(Note there is a clear distinction between an initial offer and a negotiated final offer)

IMPORTANT NOTICE: This information is provided as basic educational information by the author and is not a substitute for the advice of an expert and/or the advice of a Lawyer. There is NO representation as to legality, accuracy, correctness of the herein information and the reader is strongly urged to consult a lawyer in the relevant jurisdiction to ensure accuracy before acting on this information.