Promise to purchase: signing the acknowledgement of receipt

Since July 1, 2012, the promise to purchase forms have been providing that parties to the transaction are considered to be contractually bound at the time the promise to purchase is accepted, and not at the time the seller’s reply to the buyer is notified, as was previously the case. However, the broker still has the obligation to notify the buyer immediately of the refusal or acceptance of his promise to purchase, and keep a written proof of the notice on record.

In some cases, when using electronic signatures, all the signatories receive a signed copy simultaneously, but this is an exception. Therefore, the broker is still required to notify the buyer immediately of the refusal or acceptance of his promise to purchase, and to keep written proof of such notification in his record. 

This allows the broker to prove that the seller’s reply was sent to him. The purpose is not to create ambiguity, i.e. to prevent the buyer from falsely believing that he is released from his obligations while his offer is actually accepted. In the case of an accepted offer, the aim of this obligation is to allow the buyer to immediately start the fulfilment of conditions set out in his promise to purchase (for example, obtaining a financing and inspection), because deadlines start to run as soon as the promise to purchase is accepted. The broker should always recommend to the parties to reply in writing to a promise to purchase or a counter-proposal, even if the reply is a refusal.

Signing the “Acknowledgment of receipt” section of promise to purchase and counter-proposal forms is the best evidence that a party was notified of the reply of the other party. However, the broker may also use other means that may serve as a proof that the seller’s or the buyer’s reply has actually been sent and received: for example, an email or a fax from the recipient confirming its receipt, a message through a communication service between agencies or brokers such as Immocontact or a telegram. However, in all cases, it must be a written notice that the broker must place on record. If you choose to notify the seller’s or buyer’s reply by telephone, it is appropriate to confirm this in writing thereafter and place the confirmation on record.

Should the seller respond to a promise to purchase by a counter-proposal, the signing of the acknowledgment of receipt of the promise to purchase is not required. Indeed, the seller’s counter-proposal made the promise to purchase null and void.⁽¹⁾ In addition, the buyer was notified of the seller’s reply to the promise to purchase by the sending of the latter’s counter-proposal.

Finally, brokers may recommend the use of the standard clause 3.18 - Acceptance including notification, according to the will of the parties. For example, this may be the case where a buyer retained two interesting properties in a particular area and decided to make a promise to purchase on one of them. He can make his promise to purchase conditional upon a notification strict deadline, to ensure he knows the outcome of his promise to purchase within a specified time period.

⁽¹⁾ Note: According to clause 14.1 of the Promise to purchase form, the latter becomes null and void should a counter-proposal be made by the seller. However, clause P2.6 of the Counter-proposal form to a promise to purchase provides that the conditions of the promise to purchase that are not subject to an amendment in the counter-proposal remain unchanged. This means that the conditions of the promise to purchase that are not changed in the counter-proposal are replicated and included in the latter without the broker having to rewrite all the unchanged clauses of the promise to purchase.