Does the Settlement supersede the Agreement of Purchase and Sale?
Ontario, Canada
The following excerpt is from 1672370 Ontario Limited v. D. Narducci Holdings Inc., 2009 CanLII 53156 (ON SC):
Narducci submits that the Settlement superseded the Agreement. He argues that time was therefore no longer of the essence. In the alternative, he argues that even if time continued to be of the essence, the fact that the parties continued to negotiate beyond the new closing date fixed by the Settlement resulted in the parties being bound to follow the protocol established by decisions such as King v. Urban & Country Transport Ltd.[11] Alternately put, where an agreement of purchase and sale provides that time is of the essence and neither party is ready to close on the appointed date, either both parties must agree that the agreement is at an end or the party who wishes to end it must fix a new date for closing and signify that he is ready, willing, and able to close on that date.
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