FACTS:

Agent B submitted an offer to Agent A using a contract from 2015.  Agent A countered with Counteroffer #1, and Agent B then countered with Counteroffer #2.  Escrow was opened.  Broker A advised all parties to use the February 2017 contract.  Seller and Buyer agreed and executed the February 2017 contract.  However, Counteroffers #1 and #2 were not re-executed and their terms were not included in the rewritten contract.  Counteroffers #1 and #2 refer to lines from the 2015 contract.

ISSUE:

Should the rewritten contract have included the terms previously agreed to by the parties in Counteroffers #1 and #2?

ANSWER:

Yes

DISCUSSION:

When the buyer and seller agreed to execute a February 2017 contract, to avoid confusion, the terms set forth in Counteroffers #1 and #2 should have been incorporated into the new contract.

Because this was not done, buyer and seller should now execute an addendum to clarify all terms and memorialize they had a meeting of the minds.

Note: As a best business practice, the addendum should also clarify the original contract date as the date all inspection periods began, so there is no confusion