This contract tip is about that one tricky area in contracts is when people agree today to agree to something else later.
Many believe these are unenforceable. After all, there is no meeting of the minds. Agreeing to agree feels like an illusory and unenforceable promise. While some agreements to agree may be unenforceable, that is not always the case. Courts in some jurisdictions will and do enforce some types.
Here are two types of enforceable agreements to agree:
1. An agreement to agree on a definitive agreement with already-agreed material terms - The parties have agreed to most of the material terms in this situation but have not formally signed a document. The analysis is fact-specific, but these may be enforceable in New York, Delaware, and other jurisdictions.
2. An agreement to agree to negotiate in good faith - In this type, the parties have agreed on some material terms and agree to negotiate a contract containing those terms. Both New York and Delaware law support enforcing an obligation to negotiate in good faith depends on the facts.
When, if ever, do you use agreements to agree?