However, once these high-level conditions have been agreed, the question will arise as to whether the parties should take steps to ensure that some or all conditions are legally binding in this prelude, or whether this is only the first step in a process that must be continued until the full form documents are signed. One thing is clear: failure to comply with a negotiating provision will not result in a court giving “agreement” to the parties. It is such an abomination to the common law traditions that no common law tribunal would adopt such an approach and a bargaining provision will never be interpreted by a court as a promise of the parties that they will reach an 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. While an agreement may be a good method of identifying the main conditions or areas of agreement between the parties, it can be difficult to put these conditions on paper to allow for further enlargement to an agreement. There are things to remember here. 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. Finally, the intention of the parties should be that the provision of the negotiation should be merely an agreement or a negotiation agreement, that it depends on the language chosen by the parties in the negotiating provision and not on a prima facie position that applies to all bargaining provisions. It is certainly possible to design this provision in such a way that it is nothing more than a negotiating agreement.
However, it can also be designed so that there is a positive obligation to respect certain parameters and to undertake a number of steps in good faith in the negotiations.