Forming enforceable contracts—certainty
Forming enforceable contracts—certainty

The following Dispute Resolution practice note provides comprehensive and up to date legal information covering:

  • Forming enforceable contracts—certainty
  • Requirement of certainty—the basic principle
  • Overcoming uncertainty—the courts’ approach
  • Custom and trade usage
  • Reasonableness
  • Duty to resolve uncertainty
  • Questions of interpretation
  • Meaningless and self-contradictory phrases
  • Conflicting provisions
  • Uncertain meaning of term
  • More...

The terms of an agreement may be so vague or uncertain as to be meaningless and therefore unenforceable. However, where parties have reached agreement, a court will strive to give that agreement meaning.

This Practice Note sets out the nature of the certainty requirement and the ways in which courts have sought to limit its application.

Requirement of certainty—the basic principle

A court will not enforce a contract to which no definite meaning can be given.

In Scammell, the House of Lords held that an agreement to acquire goods 'on hire-purchase' was too vague to be enforced because many kinds of hire-purchase existed on very different terms. As a result, it was impossible to ascertain on what terms the parties had agreed to contract.

Parties must therefore take care to express the terms of their agreement in a way that is sufficiently clear to allow the meaning of those terms to be ascertained.

Even so, where parties have reached agreement, a court will be slow to find the agreement unenforceable on the grounds that its meaning is uncertain. That is because courts recognise that commercial documents are not always drafted with strict precision.

This flexible approach has been summarised as follows:

‘Businessmen often record the most important documents in crude and summary fashion: modes of expression sufficient and clear to them in the course of their business may appear to those unfamiliar

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