Offer negotiation Offers or invitations to ‘treat’ Acceptance 4


Negotiations in Good Faith?



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2. Negotiations in Good Faith?


  • Walford v. Miles [1992] HL, Lord Ackner: Inherently adversarial process, no implied duty to negotiate in “good faith”. Court unable to decide if good reason to withdraw from negotiations. D must not make positive misrepresentations

  • cf: must perform terms in good faith.

2.1 Can there be an express agreement to negotiate?

  • Coal Cliff v Sijehama (1991) NSWCA: joint venture, heads of agreement signed, but parties to “proceed in good faith to consult together upon the formulation of a more comprehensive and detailed agreement”. Language was vague and provisional. Held: obligation to negotiate in good faith was too vague without external arbitrator. Court ill equipped to fill many unresolved issues.

    • Kirby P: Some agreements to negotiate in good faith can be binding. Must be clear, or part of wider arrangement. External standard may be relevant (doctrine of freedom of contract)

    • Handley JA: Negotiations are for parties’ discretion. promise to negotiate in good faith is illusory

  • Aiton Australia Pty Ltd v Transfield (1999) FLR: dispute resolution procedure clause: “shall make good faith efforts to resolve disputes” (manager meetings, mediation and expert resolution). Not uncertain as certain procedure established for resolution.

  • * Strzelecki Holdings v Cable Sands [2010] WACA): remediation needed for radioactive tailings. ‘If the parties acting in good faith are unable to conclude a contract for the sale and purchase of the Land between themselves within 30 days then MOU will cease”. no breach for not reaching agreement:

    • Good faith meant to act honestly 'within the framework of fidelity to the bargain‘

    • Not required to act another’s interest, must have freedom for self interested behaviour provided:

      • Subject themselves to the process of negotiation

      • Keep an open mind in the sense of being willing to consider proposals

      • Put forward options for the resolution of any differences

2.2 Good Faith Internationally

  • Vienna Convention: Art 7 “regard is to be had to…the observance of good faith in international trade”

  • European law: liable for loss caused if you break off negotiations contrary to good faith. Contrary to good faith if your negotiate with real intention of agreement

  • Dutch law: compensation for expectation if there is a reasonable expectation negotiations will conclude



3. Conditional Agreements: Theory


  • Condition precedent: Contract cannot come into existence until condition is first satisfied

  • Condition subsequent: Contract binding now, but may be ended by a condition happening

  • condition precedent to performance: contract binding but performance triggered by condition happening

  • Meehan v Jones (1982) HC: “Subject to Finance” Not uncertain, inserted for benefit of P; P has choice

  • *Masters v. Cameron: 3 classes (attempt to prevent being bound too early)

  1. CBA v Dean (1983): Immediately Bound. later written record for file e.g MOU . Most common

  2. Niesmann v Collingridge (1921): complete Agreement, performance conditional on later doc

  3. Masters v. Cameron (1954): No intention to conclude bargain unless or until formal contract drawn up (to reserve right to withdraw OR in recognition some matters aren’t yet covered)

    • sum a deposit upon signing contract but should not become vendors property meanwhile

  4. Anaconda Nickel v Tarmoola (2000): intend to be bound now, but intention to supersede by later agreement. ‘heads of agreement which constitutes an agreement in itself to be replaced by a fuller agreement not different in substance or form”.

Intention to Create legal Relations


  • Principle independent of offer and acceptance: “Voluntary assumption of a legally enforceable duty”

  • Dixon J Australian Woollen Mills: “Intention” always judged objectively.

    • merit v merit, per Lord Denning: ‘court does not try to discover the intention by looking into the minds of the parties. It looks at the situation in which they were placed and asks itself: would reasonable people regard the agreement as intended to be binding?’

  • SA v Cth (1962) Windeyer J: “circumstances may show parties did not intend to subject their agreement to the adjudication of the courts”

  • *Ermogenous v Greek Orthodox Community of SA Inc. (2002 HC): Caution in using ‘presumptions’ as to parties intentions. Merely burden of proof issue. take salient features of relationship into account, were parties in a commercial transaction and dealing at arms length?

1. Family Agreements


  • Old presumption that family and social agreements are not meant to be binding

  • Balfour v. Balfour (1919) Husband moved to Africa with wife, she returned but they did not separate. made oral agreement for £30 p.m. maintenance.

    • Most H-W ‘agreements’ not enforceable: bound in honour not contract, ‘where parties share love and natural affection courts unlikely to be enforceable. More likely if breakdown atkin LJ

    • Possible to be binding but depends on (objective) intention

      1. Would W have accepted obligations/consideration?

      2. Huge burden on spouse to rebut presumption

  • Family Law Act 1975 (Cth) (court now has power to split resources). Agreement is binding if it is signed by both parties and includes a certificate that they have both received independent legal advise VIII.

Family Cases were presumption was rebutted

  • Todd v. Nicol [1957] S.A.S.R: Letters to sister in law and niece for company: 'Come and live with me rent free’, ‘if I die yours for life’. Fell out. Was intention, permanent arrangement affecting financial security (sold belongings, moved from Scotland, resigned employment). Cf. balfour didn’t keep evidence of letters

  • Popiw v. Popiw [1959] V.R. 197: H - W living apart husband is physically abusive. H promise. 'Return and I'll transfer house into joint names'. H argued she did no more that here obligation as wife. not a love and affection case, returning was against her interest. Sufficient intention/consideration to be bound.

  • *Riches v Hogben [1986]: son agrees to come to Australia to look after mother. She will buy a house in his name. ejects him. binding as reasonable people would regard it so and considerable expense by son

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