[194]
This submission presupposes that the Preliminary Agreement
was a valid and enforceable contract. It was not. On this basis alone, this claim
can be disposed of.
[195]
No authority has been provided that imposes on a party to
negotiate another agreement in good faith. There is no such duty or obligation to
negotiate in good faith. The decision of the House of Lords in Walford v.
Miles, [1992] 2 A.C. 128, [1992] 1 All E.R. 453 (H.L.) ("Walford") describes why a
duty to negotiate in good faith is simply not enforceable:
In Walford, Lord Ackner referring to a decision of the United States Court of Appeal, Third
Circuit stated:
That case raised the issue whether an agreement to negotiate in good faith, if
supported by consideration, is an enforceable contract. I do not find the decision
of any assistance. While accepting that an agreement to agree is not an
enforceable contract, the United States Court of Appeals appears to have
proceeded on the basis that an agreement to negotiate in good faith is synonymous
with an agreement to use best endeavours and as the latter is enforceable, so is
the former. This appears to me, with respect, to be an [page133] unsustainable
proposition. The reason why an agreement to negotiate, like an agreement to
agree, is unenforceable, is simply because it lacks the necessary certainty. The
same does not apply to an agreement to use best endeavours. This uncertainty is
demonstrated in the instant case by the provision which it is said has to be implied
in the agreement for the determination of the negotiations. How can a court be
expected to decide whether, subjectively, a proper reason existed for the
termination of negotiations? The answer suggested depends upon whether the
negotiations have been determined "in good faith". However, the concept of a duty
to carry on negotiations in good faith is inherently repugnant to the adversarial
position of the parties when involved in negotiations. Each party to the negotiations
is entitled to pursue his (or her) own interest, so long as he avoids making
misrepresentations. To advance that interest he must be entitled, if he thinks it
appropriate, to threaten to withdraw in fact, in the hope that the opposite party may
seek to reopen the negotiations by offering him improved terms. Mr. Naughton, of
course, accepts that the agreement upon which he relies does not contain a duty
to complete the negotiations. But that still leaves the vital question -- how is a
vendor ever to know that he is entitled to withdraw from further negotiations? How
is the Court to police such an "agreement"? A duty to negotiate in good faith is as
unworkable in practice as it is inherently inconsistent with the position of a