An agreement (which can also be characterized as a declaration of intent, memorandum of understanding, terminology sheet or otherwise) may, in certain circumstances, be considered binding, provided that a court does not also force the parties to meet and reach an agreement. First, such an injunction would require the court to play an important supervisory role, which it will not do, and second, it would have all the problems arising from an agreement to accept. A Memorandum of Understanding is a document often used in mergers and acquisitions that records the provisional terms of an agreement. While not binding, the Memorandum of Understanding provides an important overview of the key terms agreed upon by the parties to the transaction. If the parties. B have set a certain share price in a terms sheet and have also agreed to negotiate the final agreements in good faith, a party would be rightly aggrieved if the buyer had notified the seller, almost immediately after signing the contract, that he was willing to pay only a fraction of the previously indicated purchase price. Similarly, one party would rightly be disappointed if the other party, after agreeing on an exclusivity period, simply refused to enter into negotiations during that period. Increasingly, the negotiating parties will ask me to obtain a declaration of intent or an agreement as a kind of intermediate product between the negotiations and a final sales contract or other trade agreement. My usual question is, “Why this effort?” If a party intends to make the agreement legally binding at this early stage, it is essential that it seek legal advice to ensure that this intention is clarified and that the agreement is sufficiently comprehensive to conclude a legally binding agreement.
This approach can still be difficult when an argument arises before a complete documentation is completed. In this context, it may be preferable to wait for the relatively short period of time it would take for a full form agreement to be concluded before committing to supposedly binding conditions. The case law emphasizes that caution should be exercised to ensure that the intentions of the parties are properly reflected by the HOA. In the case of Baldwin/Icon Energy Limited, the parties ultimately did not agree on the terms of a formal agreement after an agreement was signed. In this case, the agreement required the parties to make reasonable efforts to negotiate a gas supply contract (GSA). The agreement provided that no binding obligation had been established and that neither party was required to enter into another agreement. Nevertheless, the applicant filed a complaint to enforce the agreement. Some contractors have provisions that require the payment of deposits or fees to further deter a party from getting rid of the agreement. But it`s relatively unusual. The second part, which has often been raised by the courts, is the argument that there is too much uncertainty about the rules of negotiation (see z.B.
Watford v Miles). While this is true for some bargaining clauses, this is not necessarily the case in others. For example, if the parties have simply entered into a Memorandum of Understanding that simply expresses the intention (or even an “agreement”) to negotiate in good faith the terms of an agreement, then it is easy to see how a court would have difficulty making sense of that “agreement”. However, if the parties negotiated a detailed contract sheet containing a set of key conditions (for example. B Price) and the undertaking that the parties will seek to obtain long contracts in accordance with these key conditions, it would appear that a total derogation of a party from these conditions, without reasonable justification or refusal to enter into negotiations, would constitute an error in the agreed manner.