Please enable JavaScript.
Coggle requires JavaScript to display documents.
REQUIREMENT OF SUBSTANTIVE CERTAINTY (Undetermined Terms (Past performance…
REQUIREMENT OF SUBSTANTIVE CERTAINTY
Undetermined Terms
The courts should intervene to determine the terms of an agreement through context and intentionality of the parties
A contract to negotiate is enforceable.
Hillas v Arcos
:red_flag:
Uncertainty could be resolved by reference to previous dealings between the parties and the custom of the trade.
A term yet to be determined means that there is no contract if it is an essential term.
The Court cannot read terms into an incomplete contract.
May & Butcher Ltd v R
:red_flag:
an agreement to later agree is not sufficient.
Past performance will indicate that a contract is binding (reliance interest).
Foley v Classique Coaches Ltd
:red_flag:
An agreement to make an agreement does not constitute a contract.
Uncertainty can be resolved by demonstrated performance over time.
Existence of functional arbitration clause can resolve contractual incompleteness.
Negotiating in 'Good Faith'
An agreement to negotiate in good faith was unworkable in practice because while negotiations were in existence, either party was entitled to withdraw from those negotiations at any time and for any reason.
Walford v Miles
:red_flag:
Agreements to agree are unenforceable (where no performance)
Is there an in implied duty of good faith?
Vagueness
Vague terms leads to uncertainty, and contract cannot be enforced.
Scammell v Ouston
:red_flag:
Uncertainty
In situations like this the courts should try and give effect to the parties’ intentions and the terms of the agreement are to be upheld if they can be found and given effect to.
Nicolene v Simmonds
:red_flag:
• Because of the commercial uncertainty, the courts have developed techniques to save contracts, such as looking at particular customs and practices of the industry.