Contra proferentem is a rule of contractual interpretation which provides that an ambiguous term will be construed against the party that imposed its inclusion in the contract - or, more accurately, against (the interests of) the party who imposed it.
Here is what is interesting, a number of preprinted “standard form” agreements still incorporate “ambiguities” that were intended to protect the sellers, at a time when it was mistakenly believed that everyone must work for the seller.
It was thought that in order to forestall a buyer from alleging misrepresentation, in relation to minor discrepancies in the dimensions of the property and escape from what was otherwise a binding contract, it was decided to insert the following (moreless) ambiguity. “having a frontage of .....(insert).... moreless, by the depth of .....(insert).....moreless...... etc..”
Supposedly, these insertions would allow the seller to claim that any discrepancy was only minor, but this only led to buyers claiming the discrepancies were major. The buyer seeks the contract be declared void, seeks a reduction in the purchase price and now it was left up to the courts and the ensuing litigation costs to decide who was right.
Fast forward to the day of “buyer’s agents” where the accepted agreement (contract) in a real estate transaction is deemed by the courts to be the buyer’s agreement, drafted by his “buyer’s agent” and therefore all ambiguities contained therein are interpreted against the interest of the buyer.
Buyer’s Agent Beware, because if you are negligent in failing to apply your due diligence in confirming the properties dimensions and/or in removing all ambiguities from the contract, you therefore breach your fiduciary duty to the buyer, who is now suing you and seeking compensation for his original loss together with his litigation costs in relation to his unsuccessful suit against the seller.
With the above information, it should make you aware of why you should discuss the Agency Agreement with your experienced real estate agent and know Who Is Working For You. I invite you to contact an experienced Buyers Agent to assist you in your next home purchase. Call/email Betty for discussion and information.
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The trademarks REALTOR®, REALTORS® and the REALTOR® logo are controlled by The Canadian Real Estate Association (CREA) and identify real estate professionals who are members of CREA. Used under license