n South African Law Journal - Agreements to agree : can there ever be an enforceable duty to negotiate in good faith?

Volume 128, Issue 2
  • ISSN : 0258-2503
  • E-ISSN: 1996-2177



Parties to an agreement may include open terms which leave certain particulars open to future negotiation. The aim of this type of provision is usually to allow for changing circumstances over time or the threshing out of more detailed terms. Conventional drafting practice is to state that these terms are to be negotiated in the future in good faith. What if a party subsequently resists all efforts to reach agreement? Is there a mechanism which will enforce this duty to negotiate? Of course the parties may have inserted their own deadlock-breaking provision - in the absence thereof a court should be able to find its own resolution. This paper will consider proposed methods of enforcement of such a duty with reference to developments in South Africa as well as other countries, particularly the USA and Australia.

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