Contract
Q&A 2
Certainty of terms and intention
Introduction
Contractual certainty
If businessmen are often not overly-concerned with the niceties of offer and acceptance it follows that their contracts may not be all-embracing and complete in every respect. The parties may have reached an agreement in principle and then prefer to rely on experience from previous dealings, business practice and goodwill. The law’s overall policy is to uphold bargains wherever possible and although businessmen tend to record their agreements in ‘crude and summary fashion’ the law should not be ‘too astute or subtle in finding defects’ (Hillas & Co. Ltd v Arcos Ltd (1932) 147 LT 503, 514, per Lord Wright). However, the parties must fix the boundaries of their own obligations and the law cannot paternalistically intervene to create a contract on their behalf. Consequently, in seeking to clarify and enforce agreements the law must tread a middle line, avoiding wanton destruction of agreements on one side and the imaginative creation of bargains on the other (compare Hillas (supra) with Scammell (G) & Nephew Ltd v Ouston [1941] AC 251). In pursuit of the general policy of upholding bargains, the law may (a) ignore a meaningless clause if it adds nothing to an otherwise complete agreement (see Nicolene Ltd v Simmonds [1953] 1 QB 543), (b) enforce an agreement where one party is under a duty to resolve the uncertainty (see David T Boyd v Louis Louca [1973] 1 Lloyd’s Rep 209), (c) refer to previous dealings and trade practices (see Hillas (supra) ) and, (d) resolve vagueness by reference to custom (see Shamrock SS Co. v Storey & Co. (1899) 81 LT 413). Often the parties attempt to allow for fluctuating economic conditions by introducing a variable provision into their agreement, e.g. dates of payment and delivery to be fixed from time to time in the future. Such a provision may be regarded by the courts as ‘an agreement to agree’ and be so uncertain as to be incapable of enforcement (see May &
Certainty of terms and intention
Introduction
Contractual certainty
If businessmen are often not overly-concerned with the niceties of offer and acceptance it follows that their contracts may not be all-embracing and complete in every respect. The parties may have reached an agreement in principle and then prefer to rely on experience from previous dealings, business practice and goodwill. The law’s overall policy is to uphold bargains wherever possible and although businessmen tend to record their agreements in ‘crude and summary fashion’ the law should not be ‘too astute or subtle in finding defects’ (Hillas & Co. Ltd v Arcos Ltd (1932) 147 LT 503, 514, per Lord Wright). However, the parties must fix the boundaries of their own obligations and the law cannot paternalistically intervene to create a contract on their behalf. Consequently, in seeking to clarify and enforce agreements the law must tread a middle line, avoiding wanton destruction of agreements on one side and the imaginative creation of bargains on the other (compare Hillas (supra) with Scammell (G) & Nephew Ltd v Ouston [1941] AC 251). In pursuit of the general policy of upholding bargains, the law may (a) ignore a meaningless clause if it adds nothing to an otherwise complete agreement (see Nicolene Ltd v Simmonds [1953] 1 QB 543), (b) enforce an agreement where one party is under a duty to resolve the uncertainty (see David T Boyd v Louis Louca [1973] 1 Lloyd’s Rep 209), (c) refer to previous dealings and trade practices (see Hillas (supra) ) and, (d) resolve vagueness by reference to custom (see Shamrock SS Co. v Storey & Co. (1899) 81 LT 413). Often the parties attempt to allow for fluctuating economic conditions by introducing a variable provision into their agreement, e.g. dates of payment and delivery to be fixed from time to time in the future. Such a provision may be regarded by the courts as ‘an agreement to agree’ and be so uncertain as to be incapable of enforcement (see May &