Postponed Bargaining: The "Agreement to Agree"

Imagine a scenario where a contract is enforced, yet not all its essential terms are clearly defined for the courts to follow. This intricate and intellectually challenging scenario is what we refer to as the Agreement to Agree.

Here, Agreement to Agree is a contractual fallacy that may happen if a given party within the supposed obligatory contractual Agreement promulgates that no such bonding within that Agreement should exist, given that no contract was formulated in negotiations due to a lack of definiteness with regard to all of the essential terms within the preliminary negotiations heretofore. Albeit this is to say that in the wake of negotiations, these negotiations were not developed enough to an extent wherein not all of the essential terms of the present Agreement (i.e., contract-suspected) were defined or were not defined to such an extent to where provides sufficient definiteness to be contractually enforceable. Therefore, these negotiations were preliminary. Ergo, no such bonding should be assigned to the party that refutes obligations to be bonded to concerning the given Agreement; this fallacy is prominent within the realm of "futures contracts." A future is an agreement in which specific essential terms within the Agreement are determined by "future" conditions, including specific economic conditions such as prevailing interest rates. In this case, whether such an agreement is contractually enforceable (i.e., enforceable under the court of law). Wherefore, the issue of preceding ambiguity within an agreement (i.e., a suspected contract manifested through negotiations underlying the concept of the meeting of the minds) is not the ambiguity of the essential terms within the said Agreement in and of itself but whether such ambiguity, as a means to make definite at a specific time in the future, has a proper method for being made definite. Thus, this is to say that although a certain degree of ambiguity is unavoidable given where essential terms within the Agreement are to be made definite in the future, does the method for defining those essential terms provide enough clarity to where, under contractual enforcement, the courts can understand those said terms to such an extent to enforce that said contract properly?

This contractual fallacy, the Agreement to Agree, is a slippery slope for the courts because, when hashing out a contract, what if the parties do not agree on those terms that will be determined in the future? How will the contract be enforced when that supposed contract has been manifested, but not all of the essential terms are agreed upon by the parties heretofore? This is when the courts may get into the slippery slope of indulging in the Statute of Frauds (e.g., "judicial paternalism"). To describe, in the process of evaluating for definiteness within the Agreement under question of enforceability, the courts deviate from evaluating for the correct methodology for which definiteness should have been applied as a means to have made such an agreement contractually enforceable and instead opt into the judicial-paternalistic role of inserting definiteness within the Agreement ad-hoc as a means to provide reconciliation for the Agreement amongst the given parties as a means to make the Agreement in question contractually enforceable.

Not all instances of the Agreement to Agree are problematic in the world of contract law. In fact, it is often crucial to use this concept to bargain in good faith. Contracts formulated under the Agreement to Agree umbrella, when used in good faith, are of utmost importance. They strike a balance, ensuring neither excessive strictness in enforcement nor a lack of enforceability.

In short, agreements made under the (i.e., consideration within the context of contract law) Agreement to Agree paradigm, some negotiations, given specific negotiating factors present within that time in which the essential terms were being negotiated upon, necessitate implementation of Agreement to Agree for a binding contractual obligation to be valid, thus enforceable, such as those agreements bargaining in good faith. Albeit there are those agreements that do not fall into such a "virtuous" category, where the courts may be tempted to delve into the Statute of Frauds, acting as a metaphorical judicial parent, hashing out the disagreements between the parties to make that disputed Agreement clarified enough as a means to make contractually enforceable.