What is the difference between an agreement to agree and an expression by the parties that a completed agreement is to be memorialized?

British Columbia, Canada


The following excerpt is from Bell (Guardian of) v. Carline Holdings Ltd., 1995 CanLII 1484 (BC CA):

12 Mr. Justice Braidwood clearly appreciated the distinction between an agreement to agree and an expression by the parties that a completed agreement is to be memorialized in a certain manner. He quoted the following from the well known leading case of Hatzfeldt-Wildenburg v. Alexander [1912] 1 CH. 284 at 288: 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.

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