A Counter-Offer Kills the Original

A buyer called me a couple of weeks ago with a question I get fairly often:

Can I cancel a real estate offer?

They'd put an offer on one property, then found another they wanted to pursue, and were trying to pull the first before submitting the second.

The answer was no — I walked through the full reasoning in a video this week. The irrevocability clause at the top of the OREA APS is the reason.

But the same principle came up in a completely different context this week.

I was doing some work on our website and came across a domain name I liked. It was owned by someone else, so I reached out and made an offer.

They countered. Higher than I wanted to spend. I let it go and moved on.

Two days later, they came back with another new offer. Still too high. I ignored it.

The day after that, I got a notification that they had "accepted" my original offer.

By that point I'd made other arrangements. I told them I wasn't going through with it. They pushed back.

I explained: you countered my original offer. That counter ended it. You don't get to keep fishing for a better price and then circle back to accept something that was already off the table.

They didn't have much of a response, because there isn't one.

Here's the legal principle:

A counter-offer does two things at once.

It rejects the original offer, and it puts a new offer on the table in its place.

The rejection is permanent. The original offer is dead, and no one can "accept" it later.

This is where a subtle point gets missed.

Irrevocability and rejection are two different things.

The irrevocability clause is a promise by the offeror not to revoke — it says nothing about what the offeree can do.

The offeree is always free to reject, and a counter-offer is a rejection.

So "This offer shall be irrevocable until Monday at 5:00 p.m." prevents the buyer from pulling the offer back before Monday. It does not stop the seller from killing the offer by countering on Saturday.

This common law rule of contract exists to prevent the following behaviour:

• A seller gets a $1,000,000 offer.
• They sign back at $1,100,000. Buyer says no.
• Seller tries $1,050,000. Buyer says no.
• Seller tries $1,025,000. Buyer says no.
• Then the seller circles back and says fine, I'll take the original $1,000,000.

The moment a seller counters, the buyer's original offer is dead. Even if the irrevocable was for four days and the counter goes back on day one, the remaining three days are meaningless.

The buyer is released. The seller can't come back on day three and try to accept the original terms after the fact.

If you're representing the seller, this matters before you sign a counter. You're giving up the ability to take the original deal.

If you're representing the buyer, it matters too. The moment that counter comes across, your client is free to walk, pursue another property, or negotiate from scratch.

One caveat worth knowing. Not every response is a counter-offer. A request for clarification, a question about terms, or a general negotiation comment isn't necessarily the same as signing back an offer.

A signed-back APS with changed terms almost always is. The wording matters, so when the line is blurry, it's worth getting a proper opinion before assuming the original is gone.

Latest YouTube Video:
Can you CANCEL a Real Estate Offer in Ontario?