Accordingly, the Commercial Court found that the parties, while considering that the option agreement was binding, were unenforceable because of the uncertainty, since the delivery dates had not been agreed and had been left for future agreement between the parties. The Tribunal also found that, had it failed to reach this conclusion, it would have concluded that the defendant`s conduct constituted a waiver of the contract and that it was liable to the applicant. If negotiations get bogged down, it may be tempting to call it one day and leave some important concepts unresolved or in the air. But as the Delgardo case shows, a party trying to impose an incomplete treaty will face a bitter struggle, even if the parties have agreed on some key conditions. Of all the types of projects that may remain unfinished, contracts should not be one. The applicant does not dispute that delivery dates are an essential issue. However, the parties could not have foreseen that the option agreement was non-binding and they also contained an effective mechanism for determining delivery dates, without the need for an agreement in the future. The applicant argued that the latter point was based on two other implied terms. Its main case was the delivery date was the earliest date that the defendant with his best efforts in 2016 (option 1) or 2017 (options two and three) and failing that, the earliest date they could offer with his best efforts. Furthermore, it argued that the delivery date was objectively appropriate if the defendant`s undertaking was taken into account, given the defendant`s obligation, which must be determined by the court if it is not agreed. An agreement is an agreement that you make before the final contract. It is a great way to understand and formalize the negotiations.
The Commercial Court has reviewed the principles of the agreements to be concluded by the main appelal courts of Mamidoil-Jetoil Greek Petroleum and B J Aviation. One of the fundamental principles that flow from these decisions is that if, in the event of an actual construction of a contract, the parties have reconciled a critical issue in the future (such as the price in a contract for the sale of goods or the provision of services), it is likely that the contract will not be applicable due to uncertainties. Decisions are also taken in favour of the proposition that, if it is satisfied that the parties intend to implement their agreement, the Tribunal should endeavour to implement that intention through the construction or application of a clause. However, the implied clause cannot be inconsistent with the Tribunal`s conception of explicit contractual terms.