I was asked if an attempt to re-negotiate parts of an agreed contract amounts to opening up the contract.
In short, my answer was, “It depends, and be sure to tell the consumer to get legal advice.” I knew that the person asking the question wasn’t satisfied with that answer.
I wondered to myself—is there a better answer?
I researched the issue to see if my answer changed.
I looked at an old case called Fraser v. Gill. It held that an interim agreement which introduced uncertainty as to the parties and many other changes to the agreed contract amounted to opening up the contract. The contract was opened and died.
The B.C. Court of Appeal in B.D. Mgmt. Ltd. v. Tajico Hldg. Ltd. looked at the issue of whether or not proposed amendments to an accepted contract amounted to an opening of the contract and its repudiation. The Court of Appeal gave a similar answer to mine but added a key question as to whether or not the proposed amendments “are all of the character which affirm and do not reject the original contract…in my opinion the appellant in Norwood did nothing other than to amend a contract in certain non-fundamental details while affirming the continued existence of that contract.” The Court of Appeal found that a proposed amendment to the accepted contract concerning increased deposit and extended dates did not amount to opening up a contract and its repudiation. The contract lived.
In Wright v. Hamster, the Court followed B.D. Mgmt. Ltd. Again, where the parties had an accepted contract and sought to extend a condition, there was no opening of the contract and its repudiation. The Court reasoned that the proposed amendment was of the character which affirmed the contract rather than repudiated it. The contract lived.
There are a couple of great articles dealing with different situations concerning whether a contract has been opened and repudiated and I have attached links to both. Again, the authors, like the case law, have no definitive answer, but a theme has emerged. If the proposed amendments are of the type which affirm the contract rather than repudiate it and are not related to fundamental terms such as the property at issue, the parties, or the price, then seeking extensions and amendments to accepted contracts in those circumstances may not open up the contract and cause its death.
However, as this requires a legal opinion and answers may vary depending on the facts of each case, a prudent licensee should explain the risks to their client and recommend they seek legal advice.
 Fraser v. Gill, 1981, CanLII 595 (BCSC)
 B.D. Mgmt. Ltd. v. Tajico Hldg. Ltd., 1988, CanLII 2932 (BCCA)
 Wright v. Hamster, (unreported), Victoria Registry No. 061354, April 2, 2009, (BCPC)
 The Dangers and Consequence of Opening up a Contract by Bruce Woolley, BCREA eBulletin, January 2016
Accepted Offers and Backup Offers – Be Careful by Greg Blanchard, Legal Update, Risk Report, May 2009