The Form 2.1 Counteroffer and Form 2.2 General Addendum both contain reference information that links the agreement back to some original document. The incorporating language reads as either “[t]he Parties accept all of the terms and conditions contained in the above Offer or Counteroffer…” in the Counteroffer form or as “All provisions of the Sale Agreement not modified by this Addendum will remain unchanged.”
This language means the document incorporates the previous contract and does not modify anything that is not expressly modified. Where possible, courts read contracts to avoid internal conflict, which can occasionally create issues. If the previous contract said “Seller must order an appraisal within five Business Days after the end of the Due Diligence Period” and a later addendum was added that stated, “Seller must order an appraisal by September 25, 2023,” the contract would then read “Seller must order an appraisal by September 25, 2023 and within five Business Days after the end of the Due Diligence Period.” If the parties wanted the Seller’s appraisal requirement to be on September 23, regardless of the five-day shot clock, they could have written “Seller must order an appraisal by September 25, 2023. The parties agree to remove all reference to Seller ordering an appraisal within 5 days after the end of the Due Diligence Period.
In situations where the parties have multiple moving parts at once, the general addendum should be as specific as possible. Generally, the best advice is to use the pre-printed forms, use a form clause library [a collection of pre-drafted language for copy-pasting into addendums], or to hire an attorney to draft the language.