Does contemplation of parties to a further agreement negate the existence of a binding agreement?

British Columbia, Canada


The following excerpt is from Norske Skog Canada Limited v. Companhia de Navegaçao Norsul, 2007 BCSC 610 (CanLII):

Further, the contemplation of parties to a further agreement does not negate the existence of a binding agreement. The often cited case of Van Hatzfeldt-Wildenburg v. Alexander, [1912] 1 Ch. 284 at 288-289 sets out the guiding principles as follows: It appears to be well settled by the authorities that if the documents or letters relied on as constituting a contract contemplate the execution of a further contract between the parties, it is a question of construction whether the execution of the further contract is a condition or term of the bargain or whether it is a mere expression of the desire of the parties as to the manner in which the transaction already agreed to will in fact go through. In the former case there is no enforceable contract either because the condition is unfulfilled or because the law does not recognize a contract to enter into a contract. In the latter case there is a binding contract and the reference to the more formal document may be ignored. The fact that the reference to the more formal document is in words which according to their natural construction import a condition is generally if not invariably conclusive against the reference being treated as the expression of a mere desire.

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