Is a contract to agree to agree when it is missing a term as to who would pay legal and/or transfer fees?
Saskatchewan, Canada
The following excerpt is from Martel v. Mohr, 2011 SKQB 161 (CanLII):
The defendants further contend that the document was simply an agreement to agree because it was missing a term as to who would pay legal and/or transfer fees. The question is whether this is such an essential term as to negative contractual intention. The difference between what is an essential term and a non-essential provision is often difficult to define, and in many situations can only be discerned by an examination of the entire contractual context. Price is almost always an essential term. As well, implied terms can transform what appears to be an omission into an enforceable contract (Foley v. Classique Coaches Ltd., [1938] All E.R. Rep. 88, [1934] 2 K.B.1 (C.A.).
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