Nothing at law requires a specific form library to be used in a real estate transaction. Form libraries should nonetheless not be mixed. The reasoning behind this guidance is one of practical contracting rather than express law. Complex contract libraries are designed to be internally cohesive because the forms are drafted with internal cohesion in mind. It is the rare form that is designed with the intent to be usable everywhere, and the form tends to have either substantially more detail to fill out the “what if” scenarios, or substantially less detail to permit flexibility [at a risk of confusion or misalignment]. E.g. a contract says “you have 20 days to do ____, if not done, use the Termination Document to terminate” will outsource all the termination language into the specified document where the pathing of the termination can be strictly controlled to avoid legal pits. Compare to “you have 20 days to do ___, if not, you can terminate,” which could result in a phone call where the other party says “we terminate.” Whether the phone call termination is valid is uncertain because the term “you can terminate” allows for a range of interpretations.
Where the “don’t mix forms” guidance comes in is when there’s a “Termination Document” in one library and a “Termination Agreement” in another that do slightly different things. If the central hub document, the sales agreement, says “use the Termination Document,” you shouldn’t be using a Termination Agreement. Metaphorically, it’s an iPhone charger being jammed into an Android phone – if you push hard enough, you may be able to get the thing to charge a little bit, but you’re probably damaging other, more important parts of the device in the act. Some forms are not drafted by the form library creator, and those can be used interchangeably without “mixing forms” in that the terms will be functionally identical across the board [e.g., Seller Property Disclosure Statement that is established verbatim in ORS 105.464]. Outside those statutory documents though, mixing should be avoided to ensure that there are no internal incoherencies or contractual ambiguities that otherwise introduce conflict or risk into a transaction.
The ”don’t mix forms” guidance should not be taken as a grant of permission to state “Will only accept/Will not accept [specific form library]” within listing remarks. ORS 696.805 and ORS 696.810 lay an unwaivable obligation on a broker to present all offers to the client when received. If a Broker states “I will only accept ____” and receives a form from a library that is prohibited, they are duty bound under Oregon law to present that to the client nonetheless. It could be an offer scribbled on a dirty napkin with a crayon, ORS 696 doesn’t care, and requires that you present it to the client. The client can ignore or disregard the offer at their leisure, but the agent does not have the luxury to act as an interdiction. Some clients may ask a broker to put a prohibition on certain types of contracts – “I don’t want to see any offers on the house from my ex-Husband” or “I don’t want to receive any offers on custom contracts the person drafted themselves” – but the agent should explain to the client that Oregon law does not allow the agent to edit which offers the client receives. Placing a prohibition on the listing remarks only serves to telegraph to the world that the agent intends to violate ORS 696.805 or ORS 696.810. There are better ways to explain the situation: “client has experience with [specific form library] and prefers them,” and “client has stated that they do not wish to accept any offers that are drafted from scratch” would both be acceptable statements that do not indicate the agent intercepting an offer and violating ORS 696.805 or ORS 696.810. Statements like “client has stated they do not wish to accept any offers from [specific form library]” would also be acceptable, but should be understood for what they are – a client’s stated stance that could deviate if the offer is good enough.
Some clients may have no opinions on form libraries and may ask the agent to provide guidance. “I don’t know anything about real estate forms, which do you want to use?” type questions. If the client asks for the agent’s opinion, the agent is able to provide their factual stance on form libraries, but should reiterate that ORS 696.805 and ORS 696.810 require the agent to present an offer to the client, no matter where or/what format it comes in. The decision on whether to accept or reject an offer must always be the client’s to make.