This is the next instalment in our OTP drafting series, where we unpack clauses that agents encounter often but rarely see explained in plain terms. This one covers the 72 hour clause, a provision that causes more confusion (and more disputes) than almost any other in a standard Offer to Purchase.
What is the 72 hour clause?
It allows a seller to keep marketing the property while the purchaser is still waiting on suspensive conditions, most commonly bond approval. If the seller receives a genuine written offer that's unconditional, or from a buyer whose conditions are already fulfilled, the seller can give the first purchaser notice.
That purchaser then has a window to either waive their conditions or prove they've been met. If they don't, the seller can cancel and accept the competing offer.
Why it works for both sides
Done properly, this clause balances two legitimate interests. Sellers don't have to sit on a property for weeks waiting on finance that may never come through. Purchasers get fair warning and a real chance to secure the deal before losing it.
The wording is where it gets won or lost
Small drafting choices carry a lot of weight here. A clause that actually protects both parties should:
- require a bona fide written competing offer
- limit that offer to one that's unconditional or already unconditional in effect
- allow notice by email, WhatsApp, or other agreed electronic means
- require the purchaser be given a copy of the competing offer
- exclude Saturdays, Sundays and public holidays from the 72 hour count
- only permit cancellation if the purchaser fails to waive or fulfil their conditions in time
Leave any of these out, and the clause stops protecting the party it's meant to protect.
Why exclude weekends and public holidays
Notice given Friday afternoon on a continuous 72 hour clock can expire before banks, bond originators, or attorneys are even back at their desks. Excluding weekends and public holidays isn't a technicality, it's what makes the clause fair in practice, not just on paper.
VDM's recommended wording
We draft this clause to allow continued marketing, require a bona fide written competing offer, permit notice via email, WhatsApp or other agreed electronic means, require a copy of the competing offer be provided, count 72 hours excluding weekends and public holidays, and allow cancellation only where the purchaser fails to fulfil or waive their conditions.
Final thoughts
The 72 hour clause isn't meant to favour buyer or seller. Drafted properly, it protects sellers from being stuck in limbo while giving purchasers a genuine chance to close. As with most of what we cover in this series: the clause only does its job if the wording actually holds up.
Example clause
72 HOUR RATIFICATION
Prior to the fulfilment of the suspensive conditions contained in clauses 4 and 5, the SELLER shall retain the right to continue marketing the PROPERTY which is the subject of this Agreement. Should the SELLER receive a bona fide written offer from a third party, free of suspensive conditions (which shall include an offer in which all suspensive conditions have already been fulfilled), the SELLER shall notify the PURCHASER by written notice delivered by hand or by electronic communication, including but not limited to email, WhatsApp, or any other electronic messaging platform agreed to by the Parties, and shall furnish the PURCHASER with a copy of such offer.
The PURCHASER shall have 72 (seventy-two) hours, excluding Saturdays, Sundays and public holidays, from the time such notice is deemed to have been received, to waive the applicable suspensive conditions or provide satisfactory written proof that such suspensive conditions have been fulfilled.
If the PURCHASER fails to deliver written notice of such waiver or proof of fulfilment within the aforesaid 72 (seventy-two) hour period, whether by hand or by electronic communication, including but not limited to email or WhatsApp, the SELLER shall be entitled to cancel this Agreement forthwith by giving written notice to the PURCHASER by any of the aforementioned methods.