CONDITIONAL CONTRACTS FOR THE SALE OF LAND IN CANADA

Abstract

The author reviews the Supreme Court of Canada’s approach to waiver involving conditional contracts for the sale of land, in order to expose the trouble with the results He scrutinizes those aspects of judicial reasoning contributing to the confusion, including the loose use of terminology, imprecise conceptualization, undue reliance on formulae rather than examination of individual contracts and abstract conceptualization. A survey of the case law from provincial courts shows an inconsistent application of the Supreme Court’s reasoning, and a resulting situation of unimproved predictability in cases involving conditional contracts. The article concludes with contrasting approaches from other jurisdictions in order to further expose difficulties in the Canadian view and make suggestions for reform.