⇒ The court may decide not to enforce an agreement between parties because it may be uncertain as to what the parties actually agreed on e.g. Scammell v Ouston [1941].

⇒ BUT, this does not mean the parties need to be absolutely certain of all of the terms in a contract for it to be certain/enforceable.

⇒ So even vague terms can amount to certainty/enforceability in some circumstances e.g. Hillas v Arcos (1932).

⇒ What if a party puts in a meaningless phrase into the contract so they can get out of the contract whenever they like claiming there is a lack of certainty?

• The phrase must be to do with the contract and if the phrase can be deleted without it having an effect on the working of the contract then it will be ignored by the court e.g. Nicolene v Simmonds [1963].

⇒ If an important/essential part of contract is left out, then the contract is unenforceable.

• The meaning of "essential" depends on the circumstances of the case and the reasonable persons test is used (i.e. would the reasonable person have seen the given part of the contract as "essential").
• See the case of Harvey v Pratt [1965].

⇒ There is no duty to negotiate in English Contract Law as it is not practicable: Walford v Miles (1992).

⇒ The court may imply reasonable terms in a contract in some circumstances e.g. Foley v Classique Coaches [1934].

⇒ An agreement is incomplete if there is a "subject to contract" clause.

• In Winn v Bull (1877-78) the agreement was "subject to the preparation and approval of a formal contract" so could not be enforceable.
• However, see the case of The Great Marine (No.2) [1990].

⇒ Agreements "on terms to be agreed" are not enforceable e.g. in The Junior K [1988] it was held that an agreement "subject to details" was not enforceable.

⇒ A contract is not incomplete if, in the contract, there is a 'machinery' for dealing with the uncertainty e.g. saying the price will depend on the market price.

⇒ See, for example, the case of Sudbrook Trading Estate v Eggleton [1982].

⇒ There is a fine line between terms that are very important and others which are simply machinery.

⇒ New Zealand Shipping Co. Ltd v A M Satterthwaite & Co., The Eurymedon [1975]: Lord Wilberforce comments on contract law as being "technical" and "schematic", which means that facts are often forced to "fit uneasily into the marked slots of offer, acceptance and consideration."

⇒ Do you agree with Lord Wilberforce's comments in New Zealand Shipping Co. Ltd v A M Satterthwaite & Co., The Eurymedon [1975]. Why?

⇒ Some other helpful legal resources on certainty:

• Main requirements for creating a valid contract
• A sure way to lose your case? Challenging contract terms for uncertainty