Nouhi v. Pourtaghi
Page 50
[265] Here there is no written evidence in support of such an agreement. Given the
magnitude of the ventures, common sense dictates some reference in written
communication as to the agreement reached. If not before the sale then certainly
afterward when, according to the defendant, the profit was earned and the
calculation of her share was capable of quantification.
[266] As to the adequacy of the alleged terms as described by the defendant, in
Berthin v. Berthin, 2016 BCCA 104 commencing at para. 47 Justice Newbury noted:
[47] Of course, the terms in question must be enforceable – i.e., must have a
definite as opposed to uncertain meaning such that a court can order either
for damages or for specific performance in the event of breach. There is no
doubt that courts will “lean heavily against finding contracts void for
uncertainty” (Copperart Pty. Ltd. v. Bayside Developments Pty. Ltd. (1996) 16
W.A.R. 396 (S.C., Full Court) at 399, quoted in S.M. Waddams, The Law of
Contracts (5th ed., 2005), 42 at fn.128). Thus Madam Justice D. Smith
stated in Frolick v. Frolick, supra:
An effective agreement requires a meeting of the minds of the
parties. An enforceable contract requires a consensus
between the parties on all of the essential terms of their
agreement. It is the responsibility of the parties, not the court,
to clearly express those essential terms so “that their meaning
can be determined with a reasonable degree of certainty”:
Scammell and Nephew Ltd. v. Outston, [1941] A.C. 251.
If the parties fail to reach a meeting of the minds on the
essential terms of their agreement, or fail to express
themselves in such a fashion that the meaning of the terms
they agreed upon cannot be reasonably divined by the court,
then the agreement will fail for lack of certainty. However, the
requirement of certainty of the terms is always balanced with
the reality of transactional negotiations. Parties may
intentionally leave gaps in the terms of an agreement to
provide for future or mutually satisfactory accommodations. In
those circumstances, the court should not apply the doctrine of
certainty so rigidly so that the intentions of the parties to create
a binding agreement are thwarted.
Lambert J.A. observed in Griffin v. Martens (1988), 27
B.C.L.R. (2d) 152 (C.A.) at ¶4: “As long as the agreement is
not to be constructed by the court, to the surprise of the
parties, or at least one of them, the courts should try to retain
and give effect to the agreement that the parties have created
for themselves.” [At paras. 30-32; emphasis added.]