Residential BrokerageChapter 3 · 32 practice questions

Chapter 3: Counter-proposals and Amendments

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Overview

This chapter explains the legal and regulatory framework governing counter-proposals and amendments in Quebec real estate transactions. Counter-proposals are a pre-contractual mechanism used when a party wishes to modify the terms of an initial offer (promise to purchase) rather than accept it outright. Amendments, by contrast, occur after a contract has been formed. Understanding the distinction, the effect of a counter-proposal on the initial offer, the mandatory forms and completion rules, and the rules around revocation, acceptance deadlines, and non-conforming acceptances is essential for any licensed real estate broker.

Conforming and Non-Conforming Acceptance Conforming and Non-Conforming Acceptance INITIAL OFFER Promise to purchase (PA) Art. 1388-1392 C.c.Q. COUNTER-PROPOSAL Mandatory CP form (OACIQ) Specific deadline: date and time Signed by the seller (offeror) ⚠ EXTINGUISHES THE INITIAL OFFER Art. 1397 C.c.Q. — irrevocable BUYER'S SIGNATURE WITHOUT MODIFICATION WITH MODIFICATION ✓ CONFORMING ACCEPTANCE Signs without any modification → Contract formed (art. 1393 C.c.Q.) The accepted CP becomes the contract ✗ NON-CONFORMING ACCEPTANCE Modifies price, date, condition… → NEW COUNTER-OFFER (counter-counter-proposal) NEW OFFER The buyer becomes the offeror INITIALS REQUIRED Any handwritten modification must be initialed by ALL parties (art. 18) AMENDMENT After contract formation Civil Code of Quebec: art. 1390 (revocability), 1393 (non-conforming acceptance = counter-offer), 1395 (deadline), 1397 (extinction) — Regulation on contracts and forms: art. 17, 18
Mandatory Form Rules (CP Form) Mandatory Form Rules (CP Form) — Residential Counter-Proposal OACIQ — Regulation on contracts and forms • Articles 17 and 18 • C.c.Q. art. 1393, 1395, 1397 CP FORM "Counter-Proposal — Residential" Mandatory OACIQ form ✓ Acceptance deadline with exact date and time ✓ No blank spaces — dashes or strike-throughs ✓ Seller's signature (offeror) upon issuance INITIAL OFFER Promise to purchase extinguished (art. 1397) COUNTER-PROP. New offer role reversal ART. 17 — COMPLETE FILLING • Form duly completed, no blank spaces • Any incomplete area: struck through or dashed • Acceptance deadline: exact date and time (art. 1395 C.c.Q.) • No ambiguity tolerated ART. 18 — INITIALING OF MODIFICATIONS • Any modification to the pre-established text: — additions — strikethroughs — overcharges INITIALED BY ALL PARTIES SIGNATURE AND ROLES OF THE PARTIES SELLER (OFFEROR) Signs the counter-proposal upon issuance May revoke before acceptance (art. 1390) BUYER (RECIPIENT) Signs only upon acceptance Modifies = new counter-offer (art. 1393) CONFORMING ACCEPTANCE Signature without modification = contract formed Accepted counter-proposal = binding contract References: art. 17 and 18 Regulation on contracts and forms (OACIQ) • art. 1390, 1393, 1395, 1397 Civil Code of Québec
Acceptance Deadline Acceptance Deadline Art. 1395 C.c.Q. • Art. 17 Regulation on contracts and forms (OACIQ) Counter-proposal • New offer (art. 1393 C.c.Q.) • Extinguishes the initial offer (art. 1397) • Revocable before acceptance (art. 1390) • Mandatory form: CP • Signed by the seller (offeror) • Buyer signs upon acceptance Deadline requirement • Art. 1395 C.c.Q.: mandatory deadline • Exact date and time required • E.g.: "March 15 at 5 p.m." • Avoid any ambiguity (art. 17 Reg.) • No blank spaces in the form • Incomplete field = struck out / dash ⚠ Vague deadline = ambiguity "48 hours" is insufficient When does the deadline start? What time does it end? Contrary to art. 17 of the Regulation ✓ Professional best practice "This counter-proposal must be accepted by the recipient no later than March 15, 2025 at 5 p.m." must include otherwise violation solution Legal foundations Art. 1393 C.c.Q. — Non-conforming acceptance = counter-offer Art. 1395 C.c.Q. — Mandatory acceptance deadline Art. 1397 C.c.Q. — Extinguishment of the initial offer Art. 17 Reg. — Complete filling, without ambiguity
Legal Nature of a Counter-Proposal Legal Nature of a Counter-Proposal Art. 1393 C.c.Q. · Art. 1397 C.c.Q. · Art. 1390 C.c.Q. — Real estate brokerage permit (Quebec) INITIAL OFFER Purchase promise from the initial recipient (buyer) offer SELLER Initial offeror Receives the purchase promise COUNTER-PROPOSAL New offer (art. 1393) Signed by the seller Specific deadline required (art. 1395) issues Extinguishes the initial offer BUYER Initial recipient Becomes recipient of the counter-proposal transmits ROLE REVERSAL Seller becomes the offeror Buyer becomes recipient REVOCABILITY Art. 1390 C.c.Q. Revocable before acceptance ✓ PURE AND SIMPLE ACCEPTANCE The buyer signs without modification → Contract formed The accepted counter-proposal becomes the contract ✗ NON-CONFORMING ACCEPTANCE The buyer modifies before signing → New counter-offer (art. 1393) The seller becomes recipient REMINDER OF APPLICABLE TEXTS: • Art. 1393 C.c.Q. — Non-conforming acceptance = counter-offer • Art. 1397 C.c.Q. — The counter-proposal extinguishes the initial offer • Art. 1395 C.c.Q. — Specific acceptance deadline mandatory · Reg. art. 17 and 18 (OACIQ) — Form CP mandatory
Offeror/Offeree Role Reversal Offeror/Offeree Role Reversal — Successive Negotiations STEP 1 — Initial Offer BUYER = OFFEROR Promise to purchase submitted to the seller (art. 1393 C.c.Q.) Offer SELLER OFFEREE Receives the promise to purchase Counter-offer STEP 2 — Counter-offer SELLER = OFFEROR Formulates a new offer (art. 1393, 1397 C.c.Q.) Extinguishes the initial offer New offer BUYER OFFEREE Receives the counter-offer Counter-counter-offer STEP 3 — Counter-counter-offer BUYER = OFFEROR Modifies the counter-offer (new offer, art. 1393) New offer SELLER OFFEREE Receives the counter-counter-offer Acceptance STEP 4 — Acceptance CONTRACT FORMED ✓ Acceptance without reservation (art. 1393 C.c.Q.) KEY PRINCIPLES • Counter-offer = new offer (art. 1393) • Extinguishes the initial offer (art. 1397) • Specific deadline mandatory (art. 1395, Reg. art. 17) • Initialling of handwritten changes (Reg. art. 18) • Mandatory form: CP Chapter 3 — Counter-offers and amendments | Civil Code of Quebec, art. 1390, 1393, 1395, 1397 | Regulation respecting contracts and forms, art. 17, 18

Key Concepts

Counter-proposals and Amendments — Real Estate Transaction Flow PHASE 1: INITIAL OFFER PHASE 2: NEGOTIATION PHASE 3: AGREEMENT Buyer submits Purchase Offer Form QC-RES 101 Seller Reviews Offer terms & conditions ACCEPT Full agreement COUNTER Modified terms REJECT Dead — no deal Counter-proposal Issued Legally terminates original offer ⚡ KEY PRINCIPLE Original offer is void; new terms rule AMENDMENT Modifies existing contract (mutual consent) COUNTER-PROPOSAL Replaces original offer entirely Accept? Yes/No YES NO → New counter or terminate Mutual Acceptance Meeting of the minds Binding Contract Written & signed by all parties REQUIRED DELIVERABLES • Copy to all parties • Broker retains record • Deadline compliance ✓ CONTRACT EXECUTED Earnest money deposit due LEGEND: Offer Counter Accept QC-RES

Definition and Legal Nature of a Counter-Proposal

A counter-proposal is a counter-offer that replaces the initial offer. Under article 1393 of the Civil Code of Québec (C.c.Q.), an acceptance that does not conform to the offer constitutes a counter-offer. In practice, when a seller receives a promise to purchase and signs a counter-proposal changing any term (price, possession date, conditions, etc.), the seller becomes the offeror, and the buyer becomes the offeree. The roles are reversed.

The fundamental legal effect of a counter-proposal is set out in article 1397 C.c.Q.: a counter-proposal extinguishes the initial offer. Once a counter-proposal is made, the initial offer can no longer be accepted, even if its original acceptance deadline has not yet expired. The counter-proposal creates a new offer that stands on its own.

Acceptance Deadline

Under article 1395 C.c.Q., every offer (and therefore every counter-offer) must include an acceptance deadline. A counter-proposal must specify the exact date and time by which the offeree (the buyer) must accept. To comply with regulatory requirements and avoid ambiguity, the deadline should be expressed as a precise date and time (e.g., "June 4, 2025 at 12:00 PM"). A vague period such as "48 hours" without a start time can create confusion and may violate Article 17 of the Regulation respecting contracts and forms, which requires that mandatory forms be "duly completed, with no blank spaces or ambiguities."

Revocability of a Counter-Proposal

Revocability of a Counter-Proposal Revocability of the Counter-Proposal (art. 1390 C.c.Q.) 1. Issuance The seller (offeror) transmits a counter- proposal to the buyer (initial recipient). Mandatory CP form 2. Revocation period The offeror may revoke his counter-proposal at any time BEFORE acceptance. Specific time limit required (art. 1395) 3. Acceptance The buyer signs WITHOUT modification → Contract formed ✓ If modification → new counter-offer T1: Issuance T2: Revocable period T3: Acceptance Revocation before acceptance The revocation must be COMMUNICATED to the recipient BEFORE he has accepted. Otherwise, the contract is formed. Revocation Non-conforming acceptance The buyer modifies an element (price, date, condition) → New counter-offer The seller becomes the recipient Modification Art. 1390 C.c.Q.: The offer is revocable as long as it has not been received by the recipient — OACIQ Rules

Like any offer, a counter-proposal is revocable before acceptance. Under article 1390 C.c.Q., an offer may be revoked at any time before the offeror receives acceptance. Therefore, a seller who signs a counter-proposal can revoke it (e.g., by written notice to the buyer) as long as the buyer has not yet accepted. If the buyer attempts to accept after receiving the revocation, no contract is formed. This remains true even if the acceptance deadline set in the counter-proposal has not yet expired.

Acceptance: Conforming and Non-Conforming

When the offeree (buyer) signs the counter-proposal without making any changes, this constitutes an unconditional acceptance, and a binding contract is formed.

If the buyer modifies any term of the counter-proposal before signing (e.g., striking out a changed possession date and reinstating the original date, or altering the signature date), the acceptance is non-conforming. Under article 1393 C.c.Q., such an acceptance does not form a contract; instead, it constitutes a new counter-offer (often called a counter-counter-offer). The roles reverse again: the buyer becomes the offeror, and the seller must accept the new terms for a contract to be created. This process can repeat until an acceptance is unconditional.

Effect on the Initial Offer's Deadline

Because a counter-proposal extinguishes the initial offer (article 1397 C.c.Q.), the acceptance deadline of the initial offer becomes irrelevant. The deadline of the counter-proposal supplants it. Even if the buyer attempts to accept the initial offer before its original deadline, the acceptance is inoperative because the initial offer no longer exists. The only valid offer is the counter-proposal.

Important Regulations, Procedures, and Code of Ethics Provisions

Mandatory Forms

In residential brokerage in Quebec, the OACIQ (Organisme d'autoréglementation du courtage immobilier du Québec) requires the use of the "Counter-proposal – Residential" (CP) form for any counter-proposal. This is a mandatory form under the Regulation respecting contracts and forms.

Completing the Form Without Blanks or Ambiguities

Article 17 of the Regulation respecting contracts and forms mandates that all mandatory forms be "duly completed, with no blank spaces or ambiguities." Accordingly, every field on the CP form must be filled, and any acceptance deadline must be stated with a specific date and time. Blank spaces or vague terms (e.g., "48 hours") may render the counter-proposal non-compliant.

Initialling Modifications

Article 18 of the Regulation requires that any modification to the pre-printed text of a mandatory form be initialled by all parties. This includes handwritten additions, deletions, or changes to any clause. If a broker adds a handwritten clause to the counter-proposal, both the seller (as offeror) and later the buyer (if accepting) must initial that clause. Failure to initial can create ambiguity or even invalidate the modification.

Signatures

The counter-proposal is signed by the seller as the offeror. The buyer affixes their signature only if they accept the counter-proposal without modification. If the buyer does not sign, the counter-proposal has not been accepted. If the buyer modifies the document, they become the offeror of a new counter-offer and their signature represents the offer; the seller then signs to accept.

Common Relationships Between Concepts

  • Counter-proposal vs. Amendment: A counter-proposal is a pre-contractual tool; it is exchanged before a binding agreement exists. An amendment (or modification) occurs after the contract has been formed (e.g., after a promise to purchase has been accepted or after a deed of sale). The counter-proposal extinguishes the initial offer; an amendment alters an existing contract without extinguishing it.
  • Role Reversal: When a seller issues a counter-proposal, the seller becomes the offeror. If the buyer then counters with a modification, the buyer becomes the offeror (counter-counter-offer). This back-and-forth continues until an unconditional acceptance occurs.
  • Acceptance Deadline and Revocability: The acceptance deadline (article 1395 C.c.Q.) does not prevent revocation (article 1390 C.c.Q.). An offeror can revoke at any time before receiving acceptance, even if the deadline has not passed. Conversely, if the offeree accepts before receiving notice of revocation, the contract is formed.
  • Extinguishment of Initial Offer: The counter-proposal kills the initial offer (article 1397 C.c.Q.). The parties cannot revert to the original terms unless a new offer is made. This underscores the importance of careful drafting: once a counter-proposal is presented, the original promise to purchase cannot be revived.

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