Agreements to Negotiate in Good Faith in England and the United States: Polar Opposites or Much the Same?
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RICHARD LIU
Agreements to Negotiate in Good Faith
in England and the United States:
Polar Opposites or Much the Same?
RICHARD LIU*
Agreements to negotiate in good faith form one of the most difficult areas of contract
law.' It is therefore unsurprising that there is a wealth of academic literature on the
topic.2 And yet the comparative Anglo-American literature has largely neglected this topic
(and contract law in general).3 The lack of comparative literature is unfortunate because
comparing legal systems tends to sharpen one's understanding of their own system and
allows systems to borrow ideas from each other.4 Understanding these agreements is
important because, as shown below, they can serve four important functions in the process
of contracting.
. BA Hons (Cantab); LLM (Harvard). The author wishes to thank Professor Henry E. Smith for his invaluable
help and guidance throughout the process and Professors Neil Andrews and Duncan Kennedy for helpful
discussion. The original version of this article was awarded the Project on the Foundations of Private Law
Prize by Harvard Law School. Email: liu.richard@live.com
'Venture Associates Corp v Zenith Data Systems Corp 96 F3d 275, 276 (9th Cir 1996) (Chief Judge Posner).
2 See, for example, Charles L. Knapp, Enforcing the Contract to Bargain, New York University Law Review,
XLIV (1969), p. 673; E. Allan Farnsworth, Preontractual Liability and Preliminary Agreements: Fair Dealing
and Failed Negotiations, Columbia Law Review, LXXXVII (1987), p. 217; Melvin A. Eisenberg, The Duty to
Negotiate in Good Faith in American Law, in Colin Lockhart (ed.), Misleading or Deceptive Conduct: Issues
and Trends (1996); Johan Steyn, Contract Law: Fulfilling the Reasonable Expectations of Honest Men,
Law Quarterly Review, CXIII (1997), p. 433; Alan Berg, Promises to Negotiate in Good Faith, Law Quarterly
Review, CXIX (2003), p. 357; Alan Schwartz and Robert E. Scott, Precontractual Liability and Preliminary
Agreements, Harvard Law Review, CXX (2007), p. 661; John Cartwright, Negotiation and Renegotiation: An
English Perspective, in John Cartwright, Stefan Vogenauer, and Simon Whittaker (eds.), Reforming the French
Law of Obligations (2009); Edwin Peel, Agreements to Negotiate in Good Faith, in Andrew Burrows and
Edwin Peel (eds.), Contract Formation and Parties (2010); Alistair Mills and Rebecca Loveridge, The Uncertain
Future of Walford v. Miles Lloyd's Maritime and Commercial Law Quarterly [2011], p. 528; Henry Hoskins,
Contractual Obligations to Negotiate in Good Faith: Faithfulness to the Agreed Common Purpose, Law
Quarterly Review, CXXX (2014), p. 131; Violeta Solonova Foreman, Non-Binding Preliminary Agreements: The
Duty to Negotiate in Good Faith and the Award of Expectation Damages, University of Toronto Faculty of Law
Review, LXXII, no. 2 (2014), p. 12; Leon E Trakman and Kunal Sharma, The Binding Force of Agreements to
Negotiate in Good Faith, Cambridge Law Journal, LXXIII (2014), p. 598; Mary Arden, Common Law and Modern
Society: Keeping Pace with Change (2015), chapter 3.
a Larry DiMatteo and Martin Hogg, Introduction, in Larry DiMatteo and Martin Hogg (eds.), Comparative
Contract Law: British and American Perspectives (2015), p. 1.
4 See Hugh Collins, Methods and Aims of Comparative Contract Law, Oxford Journal of Legal Studies, XI
(1991), pp. 397-398.
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Agreements to Negotiate in Good Faith in England and the United States: Polar Opposites or Much the Same?
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