Добавил:

Upload Опубликованный материал нарушает ваши авторские права? Сообщите нам.

Вуз:

Московский государственный университет международных отношений МИД России (МГИМО)

Предмет:

[НЕСОРТИРОВАННОЕ]

Файл:

Corbin_on_Contracts / Corbin on Contracts. Chapt.1-3.doc

Скачиваний:

181

Добавлен:

24.03.2015

Размер:

5.81 Mб

Скачать

☆

<<< < Предыдущая 149 150 151 152 153 154 155 156 157 158 159 160161 / 182161 162 163 164 165 166 167 168 169 170 171 172 173 > Следующая >>>

148 Of 174 documents

Corbin on Contracts

PART I FORMATION OF CONTRACTS

TOPIC A OFFER AND ACCEPTANCE

Supp. To CHAPTER 3 ACCEPTANCE AND REJECTION OF OFFER

1-3 Corbin on Contracts Supp. to § 3.41

Supp. to § 3.41 Effect of Rejection of an Offer

[Go To Main]

Supplement to Notes in Main Volume

1. U.S.- Van Kirk & Riles Interests, Inc. v. Forest Oil Corp., 206 F. Supp. 2d 856 (S.D. Tex. 2002) . Van Kirk, an offshore oil and gas equipment broker, learned that Agip wanted to sell its platform, and Forest was interested in buying a platform. Van Kirk's efforts to re-sell the platform to Forest failed when Agip rejected its bid. Van Kirk claimed he was Forest's agent. Forest claimed that Van Kirk was buying the platform as an independent broker from Agip in order to re-sell it to Forest. Agip granted an option to purchase the platform to Cobb, who assigned the option to Forest. Van Kirk claimed a breach of its contract with Forest. The court found that, even if Van Kirk had been Forest's agent, Van Kirk would still lose because the relationship ended when Agip rejected its bid. The agreement was limited to Van Kirk's buying the platform from Agip so it could re-sell it to Forest. Nothing about this agreement would suggest that Forest was barred from ever acquiring the platform without Van Kirk. After Agip accepted Cobb's bid, the Van Kirk-Forest relationship ended. Once the purpose of an agency is accomplished, the relationship is terminated. After Agip accepted Cobb's bid, the platform was no longer on the market by Agip, so Forest was free to purchase the platform directly from Cobb without obligation to Van Kirk under the Van Kirk-Forest agreement. The court granted judgment to Forest as a matter of law.

149 Of 174 documents

Corbin on Contracts

PART I FORMATION OF CONTRACTS

TOPIC A OFFER AND ACCEPTANCE

CHAPTER 4 INDEFINITENESS AND MISTAKE IN EXPRESSION

1-4 Corbin on Contracts 4.syn

§ 4.syn Synopsis to Chapter 4: INDEFINITENESS AND MISTAKE IN EXPRESSION

§ 4.1 Vagueness and Indefiniteness of Terms

§ 4.2 Time of Performance Indefinite-Promises of ''Permanent'' Employment-At Will Employment

§ 4.3 Indefiniteness of Price or Terms of Payment-Money as a Commodity

§ 4.4 Agreed Methods of Determining the Price or Amount

§ 4.5 Reasonable Price-Quasi-Contractual Remedy After Performance

§ 4.6 Uncertainty of Subject Matter to Be Exchanged for Price; Requirements and Output Contracts

§ 4.7 Effect of Subsequent Verbal Clarification or Action by the Parties

§ 4.8 Subsequent Action May Create a Quasi Contract

§ 4.9 Mistake-Difficulty and Complexity of the Subject

§ 4.10 Mistake as to the Words Used, or as to the Meaning Given to Words and Expressions

§ 4.11 Mistake in Transmission of Messages

§ 4.12 Objective and Subjective Theories

§ 4.13 Mutual Assent-''Meeting of the Minds''

§ 4.14 Auction Sales-Offers to Sell and to Buy

150 of 174 DOCUMENTS

Corbin on Contracts

PART I FORMATION OF CONTRACTS

TOPIC A OFFER AND ACCEPTANCE

CHAPTER 4 INDEFINITENESS AND MISTAKE IN EXPRESSION

1-4 Corbin on Contracts § 4.1

§ 4.1 n1 Vagueness and Indefiniteness of Terms

[Go To Supp]

In this subject the illustrative cases are innumerable. They are of such infinite variety that no one of them can be regarded as a decisive precedent in a new case. This is because all humankind participate in contract transactions in every field of human activity with greater or less complexity of factors, unknown or inaccurately analyzed, and because of the uncertainties of our language of communication. A complete review of the contract cases in the last half-century shows that a high percentage of contract litigation is concerned with the interpretation of language.

With respect to vagueness and indefiniteness of language, this treatise cannot undertake to report, even in abbreviated form, the specific facts and language of the cases. It is necessary, however, to collect cases in sufficient number to indicate the extent of the ever-recurrent problem, the function and the powers of the court, and the policies and considerations to be given weight in the solution. It may be helpful to make a classification of cases, necessarily incomplete, in accordance with the type of contract and the character of the facts, even though they cannot be fitted into neat little separate compartments.

A court cannot enforce a contract unless it can determine what it is. It is not enough that the parties think that they have made a contract. They must have expressed their intentions in a manner that is capable of being understood. It is not even enough that they have actually agreed, if their expressions, when interpreted in the light of accompanying factors and circumstances, are not such that the court can determine what the terms of that agreement are. Vagueness of expression, indefiniteness and uncertainty as to any of the essential terms of an agreement, have often been held to prevent the creation of an enforceable contract.n2 For example, Bert Bell, Commissioner of the National Football League, after negotiating and reaching agreement with the player's group on a detailed pension plan for active players, assured the players' representative that money would go to previously retired players when sufficient funds were available. Had a binding contract been effectuated? The court ruled that even assuming there had been a manifested intent to contract, sufficient authority in the Commissioner, and consideration, the agreement was too indefinite to constitute a contract.n3 Among the gaps were:

- ''Would the pension plan cover players in the old American Football Conference, some of whose players and teams joined the NFL?

- Would there be special treatment for players whose careers were disrupted by World War II?

- Would coverage be extended to players on now defunct teams, and if so, would this disqualify the plan for IRS purposes?

- What does it mean to say the players will be included when 'sufficient' funds are available?''

Generalizations no doubt render some service in the administration of the law, but they may result in serious injustice unless they are applied with common sense in the light of much experience. Vagueness, indefiniteness, and uncertainty are matters of degree, with no absolute standard for comparison. It must be remembered that all modes of human expression are defective and inadequate. Every student of language knows this to be true of words. Every good dictionary shows that most important words have been given several, or even many meanings. These meanings themselves must be expressed in other words that are equally difficult of definition. Other modes of expression have like uncertainty. Although actions may, as the old adage avers, speak louder than words it is often not true that they express intention with greater definiteness and certainty. In every case, the function of the court is to determine, as far as is possible, the intention of the contracting parties and to give legal effect thereto.n4 As stated by the American Law Institute: ''The terms of a contract are reasonably certain if they provide a basis for determining the existence of a breach and for giving an appropriate remedy.''n5

Courts do not make contracts. Courts have often said that they do not make contracts for the parties, very often in cases in which they wash their hands of a difficult problem that is thrust upon them by reason of incompleteness or indefiniteness in the expression of some term in a written instrument by which the parties clearly intended to be bound.n6 They may be quite justified in this, for the matter is one of degree, but it is otherwise if the case is one in which other courts, on closely similar facts, have gone farther afield in the search for intention and have been able to overcome the indefiniteness of expression and to effectuate the purposes for which the instrument was executed. In this process, the latter courts can correctly say that they ''do not make a contract for the parties'' but merely determine the just legal effect of the contract that the parties made.n7

In considering expressions of agreement, the court must not hold the parties to some impossible, or ideal, or unusual standard. It must take language as it is and people as they are. All agreements have some degree of indefiniteness and some degree of uncertainty. In spite of its defects, language renders a practical service. In spite of ignorance as to the language they speak and write, with resulting error and misunderstanding, people must be held to the promises they make. The court must not be overly fearful of error; it must not be pedantic or meticulous in interpretation of expressions.n8

The language of the parties, whether in a written instrument or otherwise, may be such as to indicate clearly that the parties themselves understand that they are not contracting. In such cases they are merely engaged in the inoperative process of preliminary negotiation; their failure to consummate a contract is not due to vagueness or indefiniteness of expression, although the terms on which they hope to agree may be very vague and indefinite.n9 When the evidence clearly shows, either by reason of definite language or otherwise, that the only (and the complete) subject matter that is under consideration is left for further negotiation and agreement, there is no contract, not for vagueness or indefiniteness of terms but for lack of any terms. The parties may use words constituting an ''agreement to agree'' or an ''agreement to negotiate'', with the result that they feel a sense of ''obligation''. This is merely an obligation to discuss terms, perhaps even to make offers and counter-offers, not an obligation to accept an offer that may be made or to render any other future performance.n10 This section of this treatise has often been cited in cases where the parties ''agreed to agree'' later on important terms.n11 Often the cases refusing enforcement can be explained on the ground that the parties had not yet expressed final assent to the transaction being negotiated; others can be explained on the ground that even though the parties thought they had contracted, the gaps could not properly be filled by the courts. Many of the cases have aspects of both problems. In fact, in many of the cases where indefiniteness is raised in contexts other than agreements to agree, the court looks at the indefinite or missing term as evidence of the lack of contractual intent.n12 As shown earlier in this treatisen13 an agreement can constitute an enforceable contract despite the fact that the parties have agreed to agree later on important terms or have agreed that final agreement will be memorialized in a final writing.n14 Indeed, even agreements to negotiate in good faith can be binding. While contracts to negotiate can be binding,n15 an expression of willingness to enter into negotiations is not such a contract.n16 Where the parties intend to contract but defer agreement on certain essential terms until later, the gap can be cured if one of the parties offers to accept any reasonable proposal that the other may make. The other's failure to make any proposal is a clear indication that the missing term is not the cause of the contract failure.n17

The ''subject matter'' under consideration may be complex, with separate elements on which the parties may prefer to negotiate separately. It may be shown that they completed their negotiations on one or more of these elements and intended to ''close the deal'' thereon and to be bound thereby, even though they expressly leave another element to further negotiation and agreement.n18 It is at this point that difficult cases arise, by reason of vagueness and indefiniteness of expression. The several ''elements'' may not have been regarded as separate and independent. The parties may have intended to ''close the deal'' as one transaction and to make a legally operative contract, even though one or more elements be left in an indefinite state. Performance may have begun, in the confident belief that agreement on the unsettled matters would follow. But disputes arise, and the courts have been obliged to make decisions. They can, and sometimes do, hold that no contract has been made, leaving the parties to such non-contractual remedies as may be available.

Binding contract intended by the parties. If the parties have concluded a transaction in which it appears that they intend to make a contract, the court should not frustrate their intention if it is possible to reach a fair and just result, even though this requires a choice among conflicting meanings and the filling of some gaps that the parties have left.n19

The courts must take cognizance of the fact that the argument that a particular agreement is too indefinite to constitute a contract frequently is an afterthought excuse for attacking an agreement that failed for reasons other than the indefiniteness. In such instances, the court should not be too fussy to determine how the gaps should have been filled. It is simply unnecessary. To illustrate, an agreement reached between a construction contractor and an owner to build a ''first class theater'' is not an enforceable contract, unless there is additional evidence that the parties had more definite specifications in mind.n20 Yet, in Bettancourt v. Gilroy Theatre Co., n21 the term ''first class theatre'' was held to be sufficiently definite in relation to the nature of the dispute. Plaintiff, the owner of urban property, was approached by a broker to sell part of it to a customer who would build a first class theater on the parcel. Plaintiff agreed to make the sale primarily motivated by the fact that such a building would enhance the value of plaintiff's adjacent properties. He entered into a contract of sale a term of which was: ''The buyers are to erect a First Class Theatre on the above described premises....'' The parcel was then conveyed and after several years of inactivity, the purchaser sold the premises to a third party who put the parcel to other uses. Note that the plaintiff had no deep interest in the exact dimensions of the premises, its appointments, its decor, the precise number of seats, etc. He was bargaining for a general result. Consequently, relative to the plaintiff's purposes, the contract was definite enough. Many of the cases cited throughout this and succeeding sections can similarly be explained. As stated in the commentary to Restatement (Second) of Contracts § 33, ''the degree of certainty required may be affected by the dispute which arises and by the remedy sought.''n22

The fact that the parties have left some matters to be determined in the future should not prevent enforcement, if some method of determination independent of a party's mere ''wish, will, and desire'' exists, either by virtue of the agreement itself or by commercial practice or other usage or custom.n23 This may be the case, even though the determination is left to one of the contracting parties, if this party is required to make it ''in good faith'' in accordance with some existing standardn24 or with facts capable of objective proof.n25 Numerous illustrative cases may be found: preliminary insurance ''binders'';n26 provisions for the execution of a lease or a mortgage ''in the usual form'' or with ''the usual terms and covenants'';n27 agreements providing for performance to the ''satisfaction'' of one of the parties;n28 agreements to take an employee into ''partnership'';n29 employment and service agreements leaving some indefiniteness as to the compensation;n30 agreements for the erection of a building without definite specifications.n31 In cases such as these, as in the Bettancourt case, the decisive fact may be whether or not the term that is somewhat indefinite was indeed the reason why the parties failed to proceed with performance. For example, in one case a settlement agreement was reached between a sub-contractor and general contractor that provided in part ''O & A will issue final payment in the amount of $613,350.00 as final contract settlement with GLHP and all of their subcontractors with proper legal releases from all parties.'' The italicized phrase appears definite enough until the record reveals that despite intensive negotiations, apparently in good faith on both sides, the lawyers and the parties could not work out mutually agreeable ''proper legal releases.'' The court opinion, finding the agreement too indefinite, details the difficulties involved in interpreting the meaning of the phrase and why neither party's interpretation was to be preferred.n32

There are cases in which mutual agreement has been expressed on all principal terms subject to a ''strike clause'' or a ''war clause'' or to the negotiation of some financing or other subsidiary contract. A decision that no contract has been consummated may be expected, unless the content of such a clause or contract can be determined in accordance with a usage or custom with which the parties are familiar.n33

The Uniform Commercial Code contains provisions applicable to contracts for the sale of goods that may often reasonably be applied in other kinds of cases. The application of such a rule is believed to come nearer to attaining the purpose of the contracting parties than any other, to give more business satisfaction and to make a contract a workable instrument.n34 Section 2-204 provides:

''(1) A contract for the sale of goods may be made in any manner sufficient to show agreement, including conduct by both parties which recognizes the existence of such a contract.''

''(2) An agreement sufficient to constitute a contract for sale may be found even though the moment of its making cannot be determined.''

''(3) Even though one or more terms are left open a contract for sale shall not fail for indefiniteness if the parties have intended to make a contract and there is a reasonably certain basis for giving an appropriate remedy.''

This general section on indefiniteness is supplemented by numerous gap-fillers, providing, for example, for the effects of missing price terms,n35 payment terms, and method, place and time of delivery.

Effect of part performance of an indefinite agreement. The determination of the intention of the parties and the interpretation of their words may both be largely affected by their conduct in the course of a transaction. The fact that one of them, with the knowledge and approval of the other, has begun performance is nearly always evidence that they regard the contract as consummated and intend to be bound thereby.n36 It may also aid in the interpretation of their words with respect to the character of the performances to be rendered.n37 In this way, the indefiniteness may be cured, or at least reduced. The fair and just solution may then be the enforcement of promises rather than a decision that no contract exists.n38 One of the alternatives open to the court is a ''quasi-contractual'' remedy of restitution. In many cases this remedy is inadequate. It is clearly inadequate if the court will refuse to allow compensation for the part performance that has not enriched the party who denies the existence of a contract but has been expensive or otherwise disadvantageous to the party rendering it.n39 Where one party has fully performed, the argument that the contract is too indefinite usually will not be sustained.n40

Indefinite writing supplemented by extrinsic evidence. An agreement that is evidenced by a signed written document may not state all the terms that are agreed upon. Even though the writing does not itself clearly state price, subject matter, or conditions, other evidence may be sufficient to fill the gaps and to remove doubts.n41 A course of dealing or a trade usage may be probative of the parties' intentions.n42 The writing may incorporate other documents by referencen43 or may indicate a method by which to determine the unstated terms on which they actually agreed.n44

If the terms of a written instrument are regarded as in any degree vague and indefinite (or, as the courts so often say, ''ambiguous''), extrinsic evidence is always admissible to aid in interpretation and to establish the meaning that was intended by the parties. Although the so-called ''parol evidence rule'' has often been held to exclude such evidence if the written words seem to the court to be ''plain and clear'', no court has asserted its application in the cases here considered. Such evidence may not be available or offered. If the actual intention of the parties can be and is determined, indefiniteness disappears as a reason for refusing enforcement.n45

Degree of definiteness required for specific performance. Judges often say that an agreement requires a higher degree of definiteness and certainty in order to justify a decree for specific performance then to justify enforcement by a judgment for damages.n46 This may be true; but the difference is one of degree, if it exists, and it is one that cannot be measured or described. It, too, retains its element of indefiniteness and uncertainty. If an agreement is enforceable by any of the known judicial remedies, it deserves the name of contract and it creates a legal duty. In as much as an equitable decree can be molded to suit the particular case as justice requires, it seems true that in some cases an indefinite agreement might properly be enforced specifically and on named conditions even though an unconditional judgment for damages would better be refused. At any rate, there are numerous cases in which specific performance has been decreed, in spite of indefiniteness as to amount and price,n47 or subsidiary terms.

48 See note 48 on page 547.

In Bryant v. Clark, 163 Tex. 596, 358 S.W.2d 614 (1962) , rehearing of cause overruled, the court refused specific performance of a simple contract for the sale of land for reasons that seemed utterly inadequate to two of the judges and equally seem so to this treatise. Here was the contract, after description of the property: ''Price to be $10,000. Mr. Bryant agrees to pay $2,000 cash and balance at 6% interest, payments to be agreed upon by seller and buyer. We have agreed as follows: 15 annual installments as balance.'' See statement under § 1174. This case was followed in Wheeler v. White, 398 S.W.2d 93 (Tex.1965) , rehearing of cause overruled. The dissent, citing this treatise's criticism, would have enforced the contract. In this case, however, the court allowed a promissory estoppel recovery for the party who had extensively relied on the agreement.

Description of land which incorporated sketches made by a person who was not a surveyor, coupled with parol evidence was held to be sufficiently definite in Hanners v. Woodruff, 257 Ga. 73, 354 S.E.2d 826, 73 A.L.R.4th 129 (1987) .

Specific performance was denied in Tri-States Investment Co. v. Henryson, 179 N.W.2d 362 (Iowa 1970) , where an option on land provided: ''Cash or Land Contract. Land Contract terms to be agreed upon after optionee exercises this option.'' The optionee exercised the option and offered cash. Parol evidence showed that the choice of methods of payments was intended to be the optionor's. The total indefiniteness of the Land Contract terms was held to be fatal. It does not appear that the optionor suggested any terms that were refused. If so, the optionor's bad faith should not have been rewarded.

See further § 1172 and cases there cited, in Chapter 64.n48

Courts should not hesitate to use evidence of good faith requirements, rooted in what the parties reasonably should understand to be their obligations, to grant specific performance of a contract. In McCandless v. Schick, n49 the parties executed a written contract for the sale of a farm on stated terms. It provided that a balance of $17,000 should be ''payable at one third (1/3 ) gross crop per year.'' This provision was held not to be too indefinite for specific enforcement, even though there was no express provision that any crops should be planted, or what the crops should be, or whether delivery should be in cash or kind. The provision must be interpreted and gaps filled in accordance with farming usages that were known to the parties.

In Schuh v. Schuh, n50 a property settlement between husband and wife provided that certain resort property should be ''placed on the market immediately and that it be sold as soon as practicable,'' the proceeds to be divided equally. The trial court dismissed the bill for specific performance, but the Supreme Court reversed, saying only this: ''We find nothing indefinite and impossible of enforcement in such language.''

Legal Topics:

For related research and practice materials, see the following legal topics:

Contracts LawFormationDefinite TermsContracts LawFormationAmbiguity & MistakeGeneral OverviewContracts LawFormationMeeting of Minds

FOOTNOTES:

(n1)Footnote 1. The process of ''implication'' is dealt with more at length in Chapter 25, Interpretation.

(n2)Footnote 2.

U.S. - Laseter v. Pet Dairy Products Co., 246 F.2d 747 (4th Cir.1957) , mere assurance by an employer that the plaintiff, an employee recovering from an injury, would be given light work as soon as he was able to do it; Tennessee Enamel Mfg. Co. v. Stoves, Inc., 192 F.2d 863 (6th Cir.1951) , cert. denied, 342 U.S. 946 , trial court had found that although ''there was no contract ... for the sale and purchase of five carloads of stoves'', there was ''a commitment to plaintiff that defendant would furnish at least five carloads of stoves,'' court of appeals reviewed the evidence and disagreed. Cia. Naviera Somelga, S.A. v. M. Golodetz & Co., 189 F.Supp. 90, 97 (D.Md.1960) , oral agreement for a bond too vague as to the coverage intended, quoting this section.

Ala. - Grand International Brotherhood of Locomotive Engineers v. Couch, 236 Ala. 611, 184 So. 173 (1938) .

Cal. - Robinson & Wilson, Inc. v. Stone, 35 Cal.App.3d 396, 110 Cal.Rptr. 675 (1973) , that portion of a contract providing for the construction of ''standard'' or ''minimum'' medical suites for $30,040 is too indefinite. Fly v. Cline, 49 Cal.App. 414, 193 P. 615 (1920) , a building contract not providing for the number of rooms or the cost.

Del. -United Aircraft Corp. v. Paul Hardeman, Inc., 58 Del. (8 Storey) 66, 204 A.2d 396 (Super.1964) .

D.C. - Rosenthal v. National Produce Co., 573 A.2d 365 (D.C.App.1990) , quoting this paragraph of the text with the comment that Professor Corbin could have composed this paragraph with this case in mind. The case involved an alleged contract to the effect that: ''we will deliver produce; you will pay us.'' There was no agreement as to subject matter, price, payment terms, quantity, quality or duration.

Ga. - Douglass v. W.L. Williams Art Co., 143 Ga. 846, 85 S.E. 993 (1915) ; Prior v. Hilton & Dodge Lumber Co., 141 Ga. 117, 80 S.E. 559 (1913) , employment to cut timber, indefinite as to time, amount, place of delivery, teams to be furnished; Hart v. Georgia R. Co., 101 Ga. 188, 28 S.E. 637 (1897) , defendant promised that if plaintiff would erect a first class hotel it would be supported by the patronage of the traveling public.

Idaho -This paragraph of the text was quoted in Dale's Service Co. v. Jones, 96 Idaho 662, 534 P.2d 1102 (1975) . This was an agreement for requirements of fill. A ''requirements'' contract is normally definite enough. U.C.C. § 2-306. Too much discretion was left to the buyer as to the ultimate grading of the site, thus making a requirements contract for a fixed price too indefinite.

Ill. - Sweeting v. Campbell, 8 Ill.2d 54, 132 N.E.2d 523, 60 A.L.R.2d 247 (1956) , action for specific performance of real property sale was denied where provisions for outside mortgage financing and purchase money second mortgage contained no maturity dates.

Me. - Ault v. Pakulski, 520 A.2d 703 (Me.1987) . A property settlement provided that the parties would ''establish a trust for the education of the children ... the cost is to be borne on a percentage basis based on the respective incomes of the Husband and Wife.'' No attempt was made to establish a trust. The wife, the lesser income-earner, provided the bulk of the educational costs and sues for proportional reimbursement. The court, quoting one sentence of this section, ruled that the contract provision was too indefinite and no cause of action was stated. The dissent, pointing out that the remedy sought was not the establishment of a trust and that practical construction by the parties cured some of the ambiguities, has much the better reasoned opinion.

Md. - First Nat. Bank v. Burton, Parsons & Co., 57 Md.App. 437, 470 A.2d 822 (1984) , cert. denied, 300 Md. 88, 475 A.2d 1200 , cert. denied, 300 Md. 90, 475 A.2d 1201 , an employment contract fixing a salary for employee-inventor which provides for vesting of inventions in employer but this ''shall not preclude the parties hereto from negotiating a further agreement for the payment of royalties or other compensations for such inventions....'' While this term was too vague, the balance of the contract was binding; Arundel Realty Co. v. Maryland Elec. Rys. Co., 116 Md. 257, 81 A. 787 (1911) , promise to make a special rate for passengers, without stating the rate or the period covered; Meyers v. Josselyn, 212 Md. 266, 129 A.2d 158 (1957) , an employment agreement provided for a ''bonus'' the amount of which was to depend on uncertainties largely in the discretion of the employer. A substantial amount was paid.

Mass. - George W. Wilcox, Inc. v. Shell E. Petroleum Products, 283 Mass. 383, 186 N.E. 562 (1933) , agreement for sale of service station with important terms unsettled; Sibley v. Felton, 156 Mass. 273, 31 N.E. 10 (1892) .

Mo. - Ogilvie v. Ogilvie, 487 S.W.2d 40 (Mo.App.1972) . The dissenting opinion seems preferable. As part of a divorce settlement the husband gave the wife his $3,000 note. She agreed to release Bertha from liability for alienation of affections in return for Bertha's promise to ''aid and assist'' the husband in paying off the note. Held, Bertha's promise was too indefinite. Meanwhile, the statute of limitations had run against the ex-wife's claim for alienation. As the wife had fully performed she should not be left without remedy. Shofler v. Jordan, 284 S.W.2d 612 (Mo.App.1955) , after interpreting the evidence of an alleged oral agreement ''with common sense and in the light of experience'' the court held that ''the language of the alleged promise was too general and indefinite,'' quoting this section. Stephens v. Stephens, 264 S.W.2d 925 (Mo.App.1954) , promise too indefinite to be operative as a consideration (query?). Brown v. Childers, 254 S.W.2d 275 (Mo.App.1953) it was ''understood'' between the seller and the purchaser of a business that the seller would be given employment without any agreement as to a period of time or amount of salary.

N.J. - Caullett v. Stanley Stilwell & Sons, Inc., 67 N.J.Super. 111, 170 A.2d 52 (1961) , reservation to the grantor in a deed of ''the right to build or construct the original dwelling or building on said premises.'' Heim v. Shore, 56 N.J.Super. 62, 151 A.2d 556 (1959) , parties negotiated orally and loosely for the sale of a tract of land, and development of the tract for residential purposes, definiteness could not be achieved by the making of ''reasonable implications,'' citing this section (also §§ 4.5 and 4.8). Cooper v. Kensil, 31 N.J.Super. 87, 106 A.2d 27 (1954) , aff'd, 33 N.J.Super. 410, 110 A.2d 559 , specific performance of an alleged option to participate in any subsequent transaction by the other party for the construction of dwellings was refused.

N.Y. - Saunder v. Baryshnikov, 110 A.D.2d 511, 487 N.Y.S.2d 51 (1985) , appeal dismissed without opinion, a private secretary's claim against her employer on an alleged oral promise ''he would take care of her and her financial needs for the rest of her life,'' violates the lifetime provision of the N.Y. statute of frauds, but is also held to be too vague for enforcement, citing inter alia, to Varney v. Ditmars, 217 N.Y. 223, 227-228, 111 N.E. 822 (1916) (defendant's promise to give plaintiff a ''fair share of his profits'' too vague where there was no market or other standard). Musco v. Pares, 2 A.D.2d 689, 152 N.Y.S.2d 612 (1956) , specific enforcement of an agreement for the sale of many lots was refused because of terms still to be agreed on. Feldman v. Rockaway News Supply Co., 6 Misc.2d 406, 157 N.Y.S.2d 671, 675 (1956) , holding that an arbitrator's award was not too uncertain for enforcement, citing this section.

N.C. - Smith v. House of Kenton Corp., 23 N.C.App. 439, 209 S.E.2d 397, 85 A.L.R.3d 407 (1974) , cert. denied, 286 N.C. 337, 211 S.E.2d 213 , contract to lease with no provision of time when rents are to be paid. Horton v. Humble Oil & Refining Co., 255 N.C. 675, 122 S.E.2d 716 (1961) .

Ohio - Trammell v. Morgan, 158 N.E.2d 541 (Ohio App.1957) , contract for exclusive services of a pugilist, the manager in return only to buy a home suitable for promisee's family, at a fair price, to be paid for out of earnings of pugilist.

Okl. - Central Mortgage Co. v. Michigan State Life Ins. Co., 43 Okl. 33, 143 P. 175 (1914) , vague agreement to buy mortgages and to procure insurance.

Or. - Klimek v. Perisich, 231 Or. 71, 371 P.2d 956 (1962) (specifications of a building contract); Bonnevier v. Dairy Cooperative Ass'n, 227 Or. 123, 361 P.2d 262 (1961) , quoting this section.

Vt. - Evarts v. Forte, 135 Vt. 306, 376 A.2d 766 (1977) . One acre was to be carved out of a four acre tract. There was insufficient description in the writing; as important, no clear idea was conveyed to the buyer as to the boundaries.

Wis. - Shetney v. Shetney, 49 Wis.2d 26, 181 N.W.2d 516 (1970) . The wife sued the husband alleging she agreed to help him get his Ph.D. in exchange for his promise to help her get her Ph.D. The wife fully performed, but the court thought that ''help'' was too indefinite a term. Note this is a case where it is likely that a presumption against intending legal consequences attaches. Dunlop v. Laitsch, 16 Wis.2d 36, 113 N.W.2d 551 (1962) , reh'g denied, 16 Wis.2d 36, 114 N.W.2d 857 , merely an agreement to agree in the future as to a specified important matter.

Eng. -British Homophone v. Kunz, etc., Mfg. Co., 152 L.T.R. 589 (1935).

(n3)Footnote 3. Soar v. National Football League Players' Association, 550 F.2d 1287 (1st Cir.1977) .

(n4)Footnote 4. It is a good general rule that their expressions should be interpreted ut res magis valeat. In American Sugar Refining Co. v. Newnan Grocery Co., 284 F. 835 (5th Cir.1922) , the court said: ''A contract will be given that construction which will make it valid and binding instead of a construction which would make it void or unenforceable.''

In Busching v. Griffin, 542 So.2d 860, 863 (Miss.1989) , the court, quoting its earlier precedent, said: ''Determination that an agreement is sufficiently definite is favored in the courts so as to carry out the reasonable intention of the parties if it can be ascertained. A contract is sufficiently definite if it contains matter which would enable the court under proper rules of construction to ascertain its terms, including consideration of the general circumstances of the parties and if necessary relevant extrinsic evidence. Having found a contract to have been made, an agreement should not be frustrated where it is possible to reach a reasonable and fair result.''

In Lee v. Joseph E. Seagram & Sons, Inc., 552 F.2d 447 (2d Cir.1977) , appeal after remand, 592 F.2d 39 , the following agreement was found to be definite enough. Seagram ''was to provide the Lees with a liquor distributorship of approximately half the value and profit potential of Capitol City [their former distributorship], within a reasonable time. The distributorship would be 'in a location acceptable to plaintiffs [the Lees] and the price would require roughly an amount equal to the plaintiffs' previous investment in Capitol City.'

See Penn-Ohio Steel Corp. v. United States, 354 F.2d 254, 173 Ct.Cl. 1064 (1965) ; Unitas v. Temple, 74 Md.App. 506, 538 A.2d 1201 (1988) , cert. granted, 313 Md. 9, 542 A.2d 846 , rev'd en banc, 314 Md. 689, 552 A.2d 1285 ; Computer Network, Ltd. v. Purcell Tire & Rubber Co., 747 S.W.2d 669 (Mo.App.1988) ; Corti v. Continental Copper & Steel Export Corp., 223 F.Supp. 503 (S.D.N.Y.1963) .

(n5)Footnote 5. Restatement (Second) of Contracts § 33(2).

(n6)Footnote 6. In Thomson v. Gortner, 73 Md. 474, 21 A. 371 (1891) , it was said: ''In order to constitute a valid verbal or written agreement, the parties must express themselves in such terms that it can be ascertained to a reasonable degree of certainty what they mean. And, if an agreement be so vague and indefinite that it is not possible to collect from it the full intention of the parties, it is void; for neither the court nor the jury can make an agreement for the parties. Such a contract can neither be enforced in equity, nor sued upon at law.''

The statement is quite untrue in those cases in which the court enforces a written instrument in accordance with a meaning that the contractors themselves did not intend. This is sometimes done by the exclusion of convincing relevant evidence of actual intention on the theory that the written words have a meaning of their own and constitute the ''contract'' in accordance with that meaning, one by which some ''substantive'' rule of law requires the parties to abide. See Chapters 24-26, Interpretation, and the Parol Evidence Rule, especially § 541. The courts never do this if it is found as a fact that the parties intended not to make a contract.

(n7)Footnote 7. In R.H. Lindsay Co. v. Greager, 204 F.2d 129 (10th Cir.1953) , cert. denied, 346 U.S. 828 , the seller's memorandum of a contract for the sale of wool was not signed by the buyer and it contained no express words of promise by the buyer to purchase. The court carefully reviewed the evidence, found a promise to buy by implication, and decreed specific performance of the bilateral contract in a suit by the buyer against the seller.

A provision in a lease for an extension ''for ___________________years'' may be given effect for one or two years and specifically enforced. Starr v. Holck, 318 Mich. 452, 28 N.W.2d 289, 172 A.L.R. 413 (1947) .

In James Talcott, Inc. v. Fullerton Cotton Mills, Inc., 208 F.2d 81 (5th Cir.1953) , the plaintiff purchased certain accounts held by the Mills, by a written contract. On the same sheet was printed a guaranty of payment signed by a guarantor. The printed guaranty began thus: ''In order to induce you to enter into an agreement dated ___________________with ___________________.'' These blanks were not filled. The court held that the connection between the guaranty and the written contract above it was sufficiently proved. The statute of frauds was not mentioned.

This section is cited in Miller v. Campello Co-operative Bank, 344 Mass. 76, 181 N.E.2d 345 (1962) , a case in which the court uses its equitable powers to fill a gap and to provide for a situation that the parties had not contemplated. See statement of the case under § 4.2 and § 553.

In Born v. Hammond, 218 Md. 184, 146 A.2d 44 (1958) , a somewhat complicated contract for the sale of land for sand and gravel purposes was held not too indefinite for enforcement, even though in case certain unforeseen contingencies arose it might be difficult to apply. The court said: ''a contract is not rendered unenforceable merely because the parties do not supply every conceivable detail or anticipate every contingency that may arise.''

In Da Rocha v. Macomber, 330 Mass. 611, 116 N.E.2d 139 (1953) , there was an agreement for use of pool room equipment with also a named purchase price. In holding it to be a lease with option to buy and not a sale, the court said: ''This agreement is ambiguous and vague. It lacks clarity in many respects but is not unintelligible. It is not too indefinite for enforcement although difficult of satisfactory interpretation. It is not surprising that the parties do not agree upon its meaning.''

See Harvey Constr. Co. v. Parmele, 253 Iowa 731, 113 N.W.2d 760 (1962) , citing this section, noted under § 4.3.

See McGee v. Clark, 343 So.2d 486 (Miss.1977) , opinion supplemented 346 So.2d 914 .

(n8)Footnote 8. This section is cited in Hartung v. Billmeier, 243 Minn. 148, 66 N.W.2d 784 (1954) , enforcing an employer's informal promise to pay a hundred dollars a year bonus if ''you boys stick with me for five years.'' The court said: ''Although vagueness and indefiniteness may prevent the creation of a contract, it is not to be forgotten that any offer or agreement is indefinite and uncertain in some degree since words are but imperfect symbols of what each party understands and intends. A proper administration of justice does not permit an overzealous quest for subtle ambiguity to destroy the intent of the parties when the court, despite some incompleteness and imperfection of expression, can reasonably find that intent by applying the words used, with all their reasonable implications, to the subject matter as the parties themselves, under all the surrounding circumstances, must have applied, used, and understood them. This court is reluctant to invoke the principle that indefiniteness prevents the creation of a contract where a just result, consistent with a reasonably expressed intent of the parties, can be reached by upholding the agreement.''

In Heiland v. Lee, 207 F.2d 939 (4th Cir.1953) , although certain letters were rather indefinite and rambling, they were held to indicate sufficiently that a testatrix had promised to convey specific land for services of personal care and support. The plaintiff had a right to damages based on the value of the land and not merely to quantum meruit.

(n9)Footnote 9. A good example of this is Chiapparelli v. Baker, Kellogg & Co., 252 N.Y. 192, 169 N.E. 274 (1929) , in which the Court of Appeals unanimously set aside a verdict and judgment for a commission for service rendered in procuring a foreign loan.

(n10)Footnote 10. An agreement to ''negotiate'', made in a collective bargain, has certain sanctions by virtue of labor legislation not applicable in commercial contracts. In government contracts, a provision for ''renegotiation'' is certainly enforceable, by virtue of statute. Even in a commercial contract it may be an enforceable agreement for a new accounting and a repayment.

See Noel v. Dumont Builders, Inc., 178 Cal.App.2d 691, 3 Cal.Rptr. 220 (1960) , noted herein under § 4.7, where the original writing was merely an invalid agreement to make a contract but the parties subsequently consummated an oral agreement.

In Fremon v. W.A. Sheaffer Pen Co., 209 F.2d 627 (8th Cir.1954) , after the assignment of an invention for an agreed consideration, the parties orally agreed for a further consideration that the parties would reconsider everything that had occurred and would reassess the value of the rights previously assigned, and that when ''we have reached that agreement'' the defendant would pay fair compensation for the rights. This required mutual agreement on more than reasonable value. It was held to be an unenforceable agreement to renegotiate.

In M.F. v. F., 40 Del.Ch. 17, 172 A.2d 274 (1961) , the father of an illegitimate child contracted to pay $75 per month for its support for 5 years, and promised at the expiration of this period to renegotiate the terms of his financial obligation in the light of the needs of the child and the financial circumstances of the father. This promise ''to renegotiate'' was held too indefinite for enforcement. See also § 2.8.

(n11)Footnote 11. E.g., Candid Productions, Inc. v. International Skating Union, 530 F.Supp. 1330 (S.D.N.Y.1982) (agreement to negotiate); Etheridge v. Ramzy, 276 So.2d 451 (Miss.1973) ; Tribune Printing Co. v. 263 Ninth Ave. Realty, Inc., 88 A.D.2d 877, 452 N.Y.S.2d 590 (1982) , aff'd, 57 N.Y.2d 1038, 457 N.Y.S.2d 785, 444 N.E.2d 35 ; Parrinelli v. Parrinelli, 138 Misc.2d 49, 524 N.Y.S.2d 159 (1988) ; Reed v. Boykin, 282 S.C. 614, 320 S.E.2d 68 (App.1984) .

(n12)Footnote 12. E.g., Weisberg v. United States Dep't of Justice, 745 F.2d 1476, 1493-94 (D.C.Cir.1984) , subsequent history too extensive to report here, (lack of duration term where compensation was dependent on duration showed lack of intent to contract).

(n13)Footnote 13. See § 2.8-2.9 above.

(n14)Footnote 14. Citing this section of the treatise, among many on this point, is Berg Agency v. Sleepworld-Willingboro, Inc. 136 N.J.Super. 369, 346 A.2d 419, 423-24 (1975) . Here there was a letter agreement, a ''binder'' check and a modified letter and the parties contemplated signing a formal lease. The letter agreements lacked terms dealing with maintenance, repairs, assignment and insurance, but the court held the essentials were there and that the parties had evidenced their intent to be contractually bound.

(n15)Footnote 15. E.g., Itek Corp. v. Chicago Aerial Indus., 248 A.2d 625 (Del.1968) , on remand, 1970 Trade Cas. (CCH) P73102, 257 A.2d 232 (Del.Super.1969) .

(n16)Footnote 16. Ridgeway Coal Co. v. FMC Corp., 616 F.Supp. 404 (S.D.W.Va.1985) .

(n17)Footnote 17. Busching v. Griffin, 542 So.2d 860 (Miss.1989) . Cf. J.W. Knapp Co. v. Sinas, 19 Mich.App. 427, 172 N.W.2d 867 (1969) , discussed in note 48 below.

In Shull v. Sexton, 154 Colo. 311, 390 P.2d 313 (1964) , payment terms were left open; buyer offered to pay cash.

(n18)Footnote 18. In Southern Airways Co. v. DeKalb County, 102 Ga. App. 850, 118 S.E.2d 234 (1960) , a complex, long-term lease of an airport was held valid and enforceable, even though some of its ''subsidiary'' provisions might be found to be so ''indefinite'' as to be unenforceable. They could be regarded as collateral and severable. This case is noted also under § 542; § 1523.

(n19)Footnote 19. United States v. City of New York, 131 F.2d 909 (2d Cir.1942) , cert. denied, 318 U.S. 781, 63 S. Ct. 858, 87 L. Ed. 1149 , is an excellent case supporting the text above. A contract binding the city to pay several millions of dollars to the federal government was held to exist, even though its terms were to be found only in a series of letters over a long period, the parties contemplated the drawing of a formal document but never did so, and some comparatively ''minor details'' were never agreed upon. The conduct of both parties showed, however, that they regarded the contract as consummated.

Haggerty v. Warner, 115 Cal.App.2d 468, 252 P.2d 373 (1953) . ''The trend of recent decisions indicates a policy of upholding contracts if a reasonable construction may be reached....'' Also, ''The law does not favor, but leans against, the destruction of contracts because of uncertainty....''

In Fifer v. Hoover, 163 Md. 381, 163 A. 848 (1933) , the court said: ''A lack of definiteness in an agreement may concern the time of performance, property to be transferred; or ... miscellaneous stipulations in the agreement. In construing such agreements a court should endeavor, if possible, to attach a sufficiently definite meaning to a bargain of parties who evidently intended to enter into a binding contract.''

In Laveson v. Warner Mfg. Corp., 117 F.Supp. 124, 127 (D.N.J.1953) the court held an agreement by a manufacturer to supply the sales agent's requirements for 5 years to be enforceable, even though prices were left open for future determination. The court said: ''Warner conceded at oral argument that it intended to enter into a binding contract. When the parties intend to enter into a binding contract the courts should strive to assist this intention,'' citing § 4.3.

In Platts v. Arney, 46 Wash.2d 122, 278 P.2d 657 (1955) , the court held that an agreement indefinitely expressed was made sufficiently definite by their subsequent writings. The court said: ''Courts do not lightly declare a contract void for lack of certainty, but will endeavor to discover the true meaning and intent of the parties. The intent of the parties is definite and unmistakable when the exchange contract and the various instruments executed pursuant to it are examined.'' See also note on this case under § 512.

Illustrative cases in accord:

Cal. - Wong v. Di Grazia, 60 Cal. 2d 525, 35 Cal. Rptr. 241, 386 P.2d 817 (1963) . ''A minor possible ground of disagreement in an otherwise complete agreement will not render the agreement uncertain. 'Where the matters left for future agreement are unessential, each party will be forced to accept a reasonable determination of the unsettled point ...' '', quoting from an earlier case. Ontario Downs, Inc. v. Lauppe, 192 Cal.App.2d 697, 13 Cal.Rptr. 782 (1961) , is an excellent illustration. A long, very detailed, written escrow agreement provided for the sale of a 450 acre tract of land to be conveyed on stated terms in installments, with an ''option'' in the purchaser to select a tract of 15.87 acres for immediate conveyance, ''subject to approval by the Optionor'' [vendor]. See notes under § 2.8; § 1174. See also Burrow v. Timmsen, 223 Cal.App.2d 283, 35 Cal.Rptr. 668, 100 A.L.R.2d 544 (1963) , noted § 1174.

Conn. - Strang v. Witkowski, 138 Conn. 94, 82 A.2d 624 (1951) .

Ga. - Milton Frank Allen Publications, Inc. v. Georgia Ass'n of Petroleum Retailers, Inc., 219 Ga. 665, 135 S.E.2d 330 (1964) , some ''ambiguity'' of terms, but contract valid.

Md. - Baker v. Dawson, 216 Md. 478, 141 A.2d 157 (1958) , a contract provided for the sale of 80 acres of land out of a larger tract, reserving certain areas to the vendor. The court carefully considered the detailed description in the contract and found it to be sufficiently definite for specific enforcement. The same was true as to the terms of a deed of trust required to secure payment of a deferred balance, although nothing was said as to taxes, insurance, and some other matters often dealt with in deeds of trust. That this contract was specifically enforceable by the purchaser's assignee, see note under § 1199.

Miss. - Jones v. McGahey, 187 So.2d 579 (Miss.1966) , suggestion of error overruled, 191 So.2d 532 , enforcing as sufficiently definite a contract between controlling shareholders to acquire outstanding shares in equal shares.

N.H. - Scott v. Grinnell, 102 N.H. 490, 161 A.2d 179 (1960) , promise to leave plaintiff sufficient money to support her in the style to which the plaintiff and the promisor's family were accustomed.

N.J. -This section is quoted in Paley v. Barton Savings & Loan Ass'n, 82 N.J.Super. 75, 196 A.2d 682 (1964) , certif. denied, 41 N.J. 602, 198 A.2d 446 , a promise to hold $1,000,000 ready for the purchase of land development mortgages was not vague or illusory, even though conditional on approval of counsel and of credit standing. Leitner v. Braen, 51 N.J.Super. 31, 143 A.2d 256 (1958) , the defendant orally promised to ''sponsor'' a bowling team organized by the plaintiff and to pay ''the usual sponsoring fees,'' plaintiff must prove what is ''usual''; Silverstein v. Dohoney, 32 N.J.Super. 357, 108 A.2d 451 (1954) , aff'd, 19 N.J. 1, 115 A.2d 1 , holding that two apparently conflicting terms in a writing could be reconciled, quoting this section.

Or. - Anaheim Co. v. Holcombe, 246 Or. 541, 426 P.2d 743 (1967) , contract to purchase land subject to financing arrangements being made. Olympia Bottling Works v. Olympia Brewing Co., 56 Or. 87, 107 P. 969 (1910) , an exclusive agency for five years to sell beer was given with an option in the agent for another five years. The option was held not to be too indefinite even though the agreement provided that there should be a revision of the selling prices. It was not a mere ''agreement to agree.''

Va. - Coastland Corp. v. Third National Mortgage Co., 611 F.2d 969 (4th Cir.1979) . A construction loan commitment for 2.2 million dollars at 41/2 % over the prime interest rate for up to 18 months was oral but many details were not discussed. Note that the details that were not discussed played no role in the lender's breach. The lender had overextended itself. High Knob, Inc. v. Allen, 205 Va. 503, 138 S.E.2d 49 (1964) , a parol agreement to supply water to a housing development.

Wis. - Taylor v. Bricker, 262 Wis. 377, 55 N.W.2d 404 (1952) .

See, also, Harlow Pub. Co. v. Patrick, 181 Okl. 83, 72 P.2d 511 (1937) .

In very numerous cases, specific performance has been decreed of an option contract giving a ''first refusal'' to purchase on any terms proposed in good faith by any third party. Such a case is Gutch v. Meccia, 142 N.J.Eq. 430, 60 A.2d 649 (1948) . And see Chapter 11 below dealing with Option Contracts. Because of the absence of a price term lessees were denied specific performance of this promise: ''Should I, Lillian J. Whatley, decide to sell at the end of three years, I will give Peggy and Jimmy Duke the first chance to buy.'' There was no reference to a price offered by a third party, and the promisor sold the premises to her stepson, who presumably had notice of the provision. Duke v. Whatley, 580 So.2d 1267 (Miss.1991) . This absence of a price term was not seen as an unsurmountable problem in Moore v. Dodge, 603 S.W.2d 236, 238 (Tex.Civ.App.1980) , writ refused n.r.e., where a written promise to give the lessee ''first crack'' at buying the leasehold was held sufficiently definite.

A bargain is not made too definite for enforcement by the fact that a party is given an option between alternative performances. Wood County Grocer Co. v. Frazer, 284 Fed. 691 (8th Cir.1922) , option in buyer of sugar to buy at a stated maximum price and option in seller to sell at a stated minimum.

Restrictive covenants against competition are not too indefinite because the extent is measured by a ''radius of twenty city squares,'' or ''ten blocks'': Mazie v. Wilson, 103 N.J.Eq. 569, 144 A. 13 (1928) ; Sandullo v. La Bruna, 111 N.J.Eq. 4, 160 A. 834 (1932) .

Cases for comparison:

In Bentzen v. H.N. Ranch, Inc., 78 Wyo. 158, 320 P.2d 440, 68 A.L.R.2d 1213 (1958) , an agreement for the sale of land was held to be unenforceable because of an indefinite provision as to payment of the ''balance''; and yet the court denied recovery of the down payment by the purchaser.

Nebraska Aircraft Corp. v. Varney, 282 Fed. 608 (8th Cir.1922) .

An agreement in which a builder undertook to build houses for the owner and the latter promised to pay as compensation for the service fifty percent of the amount that the cost of each house was less than $13,000 was held too indefinite for enforcement, because there was no agreement as to what cost items were to be considered. Maloney v. Boston Development Corp., 98 N.H. 78, 95 A.2d 129 (1953) .

In Gerruth Realty Co. v. Pire, 17 Wis.2d 89, 115 N.W.2d 557 (1962) , the plaintiff sued on a promissory note given by the defendant as a down payment on the purchase of land that accompanied the defendant's written ''offer''. But the alleged ''offer'' contained this provision: ''contingent upon the purchaser obtaining the proper amount of financing.'' Since there were no facts on the basis of which the court could determine what the parties might understand by the phrase ''proper amount'' it held that the ''offer'' was too indefinite to create a power of acceptance. The plaintiff's ''acceptance'' created no contract. The purchase price was $30,000. But the purchaser was dealing for additional property and desired a loan big enough to finance both purchases. He tried in good faith to obtain a loan of $75,000. He had refused an offer of a loan of $45,000. The court cited § 728, dealing with ''aleatory'' promises; but here the defendant's promise was ''illusory''.

An apparent promise to sell 50 automobiles is illusory if it is expressly provided that no order from the buyer shall be binding on the seller unless it is in writing and accepted by the seller. Oakland Motor Car Co. v. Indiana Auto Co., 201 Fed. 499 (7th Cir.1912) . The contract as a whole had provisions that were sufficiently definite for enforcement.

In Biothermal Process Corp. v. Cohu & Co., 283 App.Div. 60, 126 N.Y.S.2d 1 (1953) , aff'd, 308 N.Y. 689, 124 N.E.2d 323 (1954) , a letter confirming an agreement to supply the funds necessary for constructing a garbage disposal plant was held to be too indefinite and uncertain for enforcement.

(n20)Footnote 20. Compare Rialto Theatre, Inc. v. Commonwealth Theatres, Inc., 714 P.2d 328 (Wyo.1986) . A provision in a lease agreement that, if lessor or lessee built another theater in the community, they would enter into a construction contract and lease agreement was held to be too vague.

A contract to have a house suitably remodelled as a rooming house for $10,000 without further specifications was held to be too indefinite. Klimek v. Perisich, 231 Or. 71, 371 P.2d 956 (1962) .

(n21)Footnote 21. 120 Cal.App.2d 364, 261 P.2d 351 (1953) .

(n22)Footnote 22. Comment b.

(n23)Footnote 23. Metro-Goldwyn-Mayer v. Scheider, 40 N.Y.2d 1069, 392 N.Y.S.2d 252, 360 N.E.2d 930 (1976) , custom of the television industry as to when filming begins for the season.

(n24)Footnote 24. In Sonnenblick-Goldman Corp. v. Murphy, 420 F.2d 1169 (7th Cir.1970) , the plaintiff was entitled to a commission if it procured a financing commitment. It procured a commitment which contained this provision: ''You shall be furnished with evidence satisfactory to you that funds you have on hand, whether from the proceeds of your loan less required reserves, including a reasonable reserve for contingencies or otherwise are sufficient to complete all of the improvements and pay all other charges....'' Because the reserves were not specified, defendant alleged the commitment was too indefinite to be deemed a commitment. The court deemed that the standard of reasonableness was definite enough. Note that the dispute between the parties had nothing to do with this clause. As in so many other cases the indefiniteness issue was an afterthought.

(n25)Footnote 25. There is an excellent discussion of this problem in Mantell v. International Plastic Harmonica Corp., 141 N.J.Eq. 379, 55 A.2d 250, 173 A.L.R. 1185 (1947) , where an agreement between the producer of a new invention and a distributor left the price to be paid by the latter subject to later determination in large degree by the producer.

A contract may properly provide for revision of its terms in case of changed conditions and for arbitration as to the change of terms if the parties do not agree on the changes. Zelle v. Chicago & N.W.R. Co., 242 Minn. 439, 65 N.W.2d 583 (1954) .

In Roberts v. Adams, 164 Cal.App.2d 312, 330 P.2d 900 (1958) , a lease provided that the lessee should have an option to purchase ''for the total sum of $85,000, payable as mutually agreed by both parties.'' The court held that the terms were too indefinite for enforcement-a mere agreement to agree-even though the lessee was willing to pay cash in full. The court said: ''It is firmly established as the law of California that failure to specify or furnish a standard for determination of terms of payment and method of securing the unpaid balance of the purchase price of real or other property is fatal to its enforceability notwithstanding any desire of the courts to be liberal and helpful.'' Other California cases show that this supposed rule, as applied to variant facts is not so ''firmly established''.

See § 4.4 and the cases cited and discussed therein.

(n26)Footnote 26. An oral ''binder'' is an enforceable contract of insurance, in spite of its informality and indefiniteness. National Investors Fire & Casualty Ins. Co. v. Pacific Indemnity Co., 359 F.2d 203 (10th Cir.1966) .

Cal. - Parlier Fruit Co. v. Fireman's Fund Ins. Co., 151 Cal.App.2d 6, 311 P.2d 62 (1957) , appeal after remand, 178 Cal.App.2d 357, 2 Cal.Rptr. 906 . The provisions that are ''usual'' in such cases will be found by implication in order to attain the purpose of the insurance applied for. See also § 2.8; § 2.9; § 245; § 562.

Ky. - Hartford Accident & Indemnity Co. v. Middlesboro-LaFollette Bus Line, 357 S.W.2d 671 (Ky.1962) , oral insurance binder enforceable even though amount of premium was still to be determined, and loss occurred before issuance of policy and determination of premium. The insurer agreed to carry the risk and the insured agreed to pay the premium, both knowing that the amount of the premium would depend on a subsequent valuation and estimation of the risk.

N.Y. - Cees Restaurant, Inc. v. Lobdell, 15 N.Y.2d 275, 258 N.Y.S.2d 87, 206 N.E.2d 180, 14 A.L.R.3d 562 (1965) .

(n27)Footnote 27. A contract for a lease is not made too indefinite by the fact that it provides merely for a lease with the ''usual and proper covenants.'' Bondy v. Harvey, 62 F.2d 521 (2d Cir.1933) , cert. denied, 289 U.S. 740 ; Flexman v. Corbett, [1930] 1 Ch. 672 ; Melzak v. Lilienfeld, [1926] 1 Ch. 480 . Compare Herley, Inc. v. Harsch, 61 Ohio App. 260, 22 N.E.2d 515 (1938) , where it was not shown that there was any customary form of lease.

In M. De Matteo Constr. Co. v. Daggett, 341 Mass. 252, 168 N.E.2d 276 (1960) , a contract for the sale of land was sufficiently definite for specific enforcement, although it provided ''that the buyer shall execute and deliver ... a mortgage deed in the usual form with statutory mortgage covenants, conditions and powers of sale.'' The unpaid amount to be secured, the annual payment and the rate of interest were specified; but a promissory note was not referred to.

(n28)Footnote 28.

Mont. - Lee v. Lee Gold Mining Co., 71 Mont. 592, 230 P. 1091 (1924) .

N.Y. - Duplex Safety Boiler Co. v. Garden, 101 N.Y. 387, 4 N.E. 749 (1886) .

Or. - Western Hills, Oregon, Ltd. v. Pfau, 265 Or. 137, 508 P.2d 201 (1973) .

See further, § 644, Condition of Personal Satisfaction.

(n29)Footnote 29. In Marek v. McHardy, 234 La. 841, 101 So.2d 689 (1958) , a contract whereby the defendant promised to employ the plaintiff as a roentgenologist for three years at a stated salary, and thereafter to make him a participating partner with 10% interest in a medical clinic, was held not to be too ''vague and indefinite'' for enforcement in an action for damages. The defendant repudiated the promise of a partnership. Validity did not require that details such as ''hours, days off, vacations, sick leave, retirement and plans depending on contingencies such as death or retirement of partners'' should be expressly provided for. See note on this case under § 959.

In McMurray v. Bateman, 221 Ga. 240, 144 S.E.2d 345 (1965) , an agreement taking a doctor into partnership was held not too vague for enforcement of the agreement not to compete, even though the agreement was left open on the matters of time-off, vacations and time for further study and provided that unforeseen problems would be dealt with on the basis of the ''spirit'' contained in the contract, the Golden Rule and accepted Christian principles where the parties had performed under the agreement for two years.

Burr v. Greenland, 356 S.W.2d 370 (Tex.Civ.App.1962) , writ refused, n.r.e. alleged oral partnership and oral agreement of dissolution, both held to be too indefinite.

(n30)Footnote 30. In Delorafano v. Delafano, 333 Mass. 684, 132 N.E.2d 668 (1956) , there was a finding that, in return for a son's leaving a job and coming to work for his father, the latter promised to pay $50 a week in cash, $10 a week in kind, to increase wages if business should improve, and that if anything happened to the father the store business should be the son's. This was held not to be too indefinite for enforcement; but the case was dismissed on other grounds.

In other cases the exact amount of compensation was left for subsequent agreement after experience should indicate profits, but the court held that there was a valid preliminary contract. Eno v. Prime Mfg. Co., 314 Mass. 686, 50 N.E.2d 401 (1943) ; Ellis v. Victor Elec. Products, Inc., 85 Ohio App. 170, 88 N.E.2d 275, 40 Ohio Op. 122, 55 Ohio L.Abs. 445 (1949) .

See also Vincent v. Palmer, 179 Md. 365, 19 A.2d 183 (1941) , granting a decree for an accounting in a case in which the employee was promised a percentage of the profits of the business.

In Stork v. Troeger, 103 Ohio App. 144, 144 N.E.2d 675, 3 Ohio Op.2d 207 (1956) , appeal dismissed, 165 Ohio St. 405, 135 N.E.2d 675, 60 Ohio Op. 33 , an old man executed a written agreement to pay, for services rendered by the plaintiff in caring for him, such an amount as the old man ''determines to be a just consideration.'' At the same time the old man executed a will leaving all of his property to the plaintiff. Some time later he executed a second will leaving his property to others. The court held that there was no breach of contract. The writing contained no promise to make a will and no promise not to revoke the first will. The plaintiff's remedy, if any, was for quantum meruit.

(n31)Footnote 31.

Cal. - Bohman v. Berg, 54 Cal.2d 787, 8 Cal.Rptr. 441, 356 P.2d 185 (1960) , to turn a Greyhound Bus into a luxurious ''land yacht,'' facts noted § 4.7. Note that there were some specifications and performance cured much of the uncertainty.

This section is cited in Rivers v. Beadle, 183 Cal.App.2d 691, 7 Cal.Rptr. 170 (1960) . The parties executed a written contract whereby, in consideration of the plaintiff's waiving her right to a commission on the sale of three lots purchased by the defendant, the latter promised to build on each of the three lots ''a speculative home'' and to place it on the market for sale; also to give to the plaintiff ''the exclusive right to sell each of such houses'' at a commission of 3% of the sale price, such agency to last for one year after the completion of each house. This contract was held sufficiently definite for enforcement even though the term ''speculative home'' required explanation by parol evidence. Noted also § 499; § 527; § 579.

Mass. - Jones v. Parker, 163 Mass. 564, 40 N.E. 1044 (1895) , a leasing agreement providing that the defendant would complete the building with apparatus sufficient ''reasonably to heat and light the demised premises.'' Either a jury or a judge, so said Holmes, J., would have no undue difficulty in determining whether what was done amounted to reasonable heating and lighting, even though the agreement prescribed no particular method.

N.Y. -This section is cited in Tobin v. Union News Co., 13 N.Y.2d 1155, 247 N.Y.S.2d 385, 196 N.E.2d 735 (1964), affirming mem. 18 A.D.2d 243, 239 N.Y.S.2d 22. The lessee of a restaurant property covenanted to ''change the living quarters on second floor to banquet and restaurants facilities.'' The court held that this was not too vague. Note that this was to be done within a year after commencement of the lease. Tenant's failure to do anything deprived the landlord of a valuable part of the consideration promised in exchange for the leasehold. In Lawrence v. Saratoga Lake R. Co., 36 Hun. 467 (N.Y.1885) , an agreement by the railroad, in consideration of a right of way conveyed to it, to build a ''neat station'' and two overhead bridges across a cut was enforced. Note that plaintiff was willing to accept as ''neat'' any station similar to those which the railroad had built elsewhere.

See further § 4.7 and cases there cited.

Cases refusing enforcement:

Hunt v. Hammonds, 257 Ala. 586, 60 So. 2d 355 (1952) , plaintiff promised to supply about 8 acres of land on a certain highway, on which the defendant agreed to erect a drive-in theater and cafe, plaintiff to be manager at a stated salary and to have one fifth of all proceeds.

Atlantic Coast Line R. Co. v. Georgia, Ashburn, Sylvester & Camilla R. Co., 91 Ga.App. 698, 87 S.E.2d 92 (1955) , cert. denied, 350 U.S. 887 , the defendant covenanted, in consideration of the grant of a right to cross the plaintiff's road, to build an interlocking plant at the point of crossing and to ''further alter and improve or erect new and improved signals upon demand of the party of the first part.''

Academy Chicago Publishers v. Cheever, 144 Ill.2d 24, 161 Ill.Dec. 335, 578 N.E.2d 981 (1991) , widow of John Cheever agrees to provide a manuscript of ''The Uncollected Stories of John Cheever.'' More than 60 such stories were found. She repudiated. The trial court found the agreement sufficiently definite, declaring she should deliver a manuscript ''including at least 10 to 15 stories totalling at least 140 pages.'' Other gaps were also filled by the order. The Supreme Court held, however, that the contract was too indefinite. The length and content of the book were the very issues that disrupted the relationship and led to litigation.

(n32)Footnote 32. United States v. Orr Constr. Co., 560 F.2d 765 (7th Cir.1977) .

(n33)Footnote 33. The contract was held to be consummated and sufficiently definite in Ouston v. Scammell, [1940] 1 All E.R. 59 (C.A.), where two business men agreed upon the delivery of a new truck in exchange for a used truck and a balance in money to be paid within 2 years in accordance with a ''hire-purchase'' agreement to be negotiated with a finance company. The parties would be bound to perform according to some reasonable and customary ''hire-purchase'' agreement. This decision seems reasonable; but it was reversed by the House of Lords. Scammell v. Ouston, [1941] 1 All E.R. 140.

Bishop & Baxter v. Anglo-Eastern Trading & I. Co., [1944] 1 K.B. 12 . The court, perhaps justifiably, felt itself bound to decide as it did by the decisions of the House of Lords in Love & Love & Stewart (Ltd.) v. S. Instone & Co. (Ltd), 33 T.L.R. 475 (1917), ''subject to strike and lockout clauses'', and Scammell v. Ouston, above.

With the Ouston case compare Pure Oil Co. v. Petrolite Corp., 158 F.2d 503 (5th Cir.1946) , cert. denied, 330 U.S. 834 (1947) , in which the lessee of certain processing machinery was given an option to purchase at a specified price, ''subject to the terms of a sales and purchase agreement, to be entered into between the parties.'' Since the use of the machinery involved also the use of the lessor's ''process,'' the contemplated agreement included provisions as to license and royalty. These the court could not ''imply'' or determine.

In Magna Development Co. v. Reed, 228 Cal.App.2d 230, 39 Cal.Rptr. 284 (1964) , the following clause was deemed too uncertain. ''Said Deed of Trust ... will contain a subordination clause which will provide that Sellers ... will agree that said Deed of Trust may be subordinated to a Deed of Trust securing a construction and/or take-out loan thereon ....'' The primary vice was that there was no restriction on the amount of the loan. When plaintiff sought to ''waive''; i.e., renounce the clause, the court ruled that such renunciation would result in a different contract and therefor was ineffective. This treatise does not support this last point. Although the renunciation would change the contract, it would do so unilaterally to lessen the rights of the plaintiff. This can be allowed.

To the effect that a subordination agreement is fatally indefinite if it fails to define and minimize the risk that the subordinating liens will impair or destroy the seller's security is Handy v. Gordon, 65 Cal.2d 578, 55 Cal.Rptr. 769, 422 P.2d 329, 26 A.L.R.3d 848 (1967) .

(n34)Footnote 34. In Deck House, Inc. v. Scarborough, Sheffield & Gaston, Inc., 139 Ga.App. 173, 228 S.E.2d 142 (1976) , a written contract for the sale of building supplies for $58,817, was sufficiently definite under the Code standard despite the absence of a payment term, a vague term relating to later price adjustments and no time for performance. The two requisites of intent to contract and the availability of an appropriate remedy were met.

In Pennsylvania Co. v. Wilmington Trust Co., 39 Del.Ch. 453, 166 A.2d 726, 731 (1960) , aff'd in part, and appeal dismissed in part, 40 Del.Ch. 1, 172 A.2d 63 , the court considers the effect of the Uniform Commercial Code, § 2-204(3), as adopted in Pennsylvania. It held that a letter agreement purporting to be an offer and acceptance might be found to be operative as a contract, because so intended by the parties, even though the letter indicated that there were some matters still to be drafted in a formal document. See § 2.9.

In H.C. Schmieding Produce Co. v. Cagle, 529 So.2d 243 (Ala.1988) , this section of the U.C.C. is applied to effectuate the intent of the parties.

The Uniform Commercial Code-Sales, § 2-311 provides:

''(1) An agreement for sale which is otherwise sufficiently definite (Subsection (3) of Section 2-204) to be a contract is not made invalid by the fact that the agreement leaves particulars of performance to be specified by one of the parties. Any such specification must be made in good faith and within limits set by commercial reasonableness.''

''(2) Unless otherwise agreed specifications relating to assortment of the goods are at the buyer's option and except as otherwise provided in subsections (1)(c) and (3) of Section 2-319 specifications or arrangements relating to shipment are at the seller's option.''

Subsection (3) also provides for the effect of failure to exercise the option seasonably.

(n35)Footnote 35. U.C.C. § 2-305, discussed in § 4.3 below.

(n36)Footnote 36. This passage is quoted and implemented in Yellow Run Coal Co. v. Alma-Elly-Yv Mines, Ltd., 285 Pa.Super. 84, 426 A.2d 1152, 1154 (1981) .

(n37)Footnote 37. In Gaswint v. Case, 265 Or. 248, 509 P.2d 19 (1973) , plaintiff was to be employed as a foreman in the plastics department. Defendant fired him and argued that the job description in the contract was too vague. It was held that the job had become sufficiently well defined by the actions of the parties.

Innkeepers Int'l, Inc. v. McCoy Motels, Ltd., 324 So.2d 676 (Fla.App.1975) , cert. denied, 336 So.2d 106 (Fla.) . McCoy agreed to employ a management consulting firm for its yet to be built motel. When the motel was built, the consulting firm sued to enforce the contract. Despite the argument that the contract was too vague because it contained no date of beginning, the court filled the gap, pointing out that it was common sense to conclude that the beginning date for providing services was when the motel was completed.

Restatement (Second) of Contracts § 34(2) provides: ''Part performance under an agreement may remove uncertainty and establish that a contract enforceable as a bargain has been formed.''

(n38)Footnote 38. In Fenton v. Federal State Bldg. Trust, 310 Mass. 609, 39 N.E.2d 414 (1942) , the court enforced a vaguely worded promise of a commission. It said: ''The promise by the testator to see that the plaintiff, if he would withdraw from further negotiations with the firm, would be taken care of was not too vague, uncertain or indefinite to render it incapable of being enforced. The jury might find that, in the circumstances, the plaintiff was to be paid the same compensation as if he himself had successfully negotiated the lease. In other words, the agreement could be reasonably understood to mean that the plaintiff was to be made whole. This could not be accomplished unless the plaintiff were put in the same position as he would have been in if his services had not been interrupted by the testator.''

In Bohman v. Berg, 54 Cal.2d 787, 8 Cal.Rptr. 441, 356 P.2d 185 (1960) , the two lower courts held the agreement too uncertain for enforcement. The Supreme Court reversed, holding that the testimony showed that the parties had ''entered into an agreement which they understood, by which they intended to be bound and which was eventually performed.'' Noted at length under § 4.7.

See, also, Phillips Petroleum Co. v. Rau Const. Co., 130 F.2d 499 (8th Cir.1942) , cert. denied, 317 U.S. 685 , rehearing denied 317 U.S. 713 .

Many other cases are noted under § 542 and § 543A. See also § 4.7.

In Brown v. Bivings, 277 P.2d 671 (Okl.1954) , the plaintiff brought suit to establish ownership of an interest in certain oil and gas leases held by defendant. The claim was based on an oral agreement whereby the parties were to procure properties for their joint ownership, sharing equally in profits and income. The defendant was to make all financial arrangements and the plaintiff to supply his skill and experience in development and operation at a nominal salary of $200 per month. Property was acquired and operated for a period of two years, when the defendant discharged the plaintiff, repudiated the agreement, and refused to convey or to account. The trial court gave judgment for plaintiff, but the Supreme Court reversed this by six judges to three, holding that the record showed a number of essential items never agreed on and that no oral contract existed. The minority thought otherwise, and that even though the parties expected to reduce their agreement to writing they proceeded to operate for two years without doing so. Both parties contended that they had made a contract, the plaintiff contending that it was a partnership or joint venture, the defendant that it was merely one of employment at a salary. The dissenting judges thought the evidence to be such that the trial court was justified in finding for the plaintiff.

In Dale's Shoe Store, Inc. v. Dale, 104 Ga.App. 371, 121 S.E.2d 695 (1961) , the plaintiff sued for the value of services rendered in reliance on the defendant's promise to pay for them ''When the store got on its feet and got to making a profit.'' Was this too indefinite and uncertain for enforcement? This court held that it was. The plaintiff introduced evidence as to the financial condition of the business. Compare the cases cited under § 641. See also Burden v. Thomas, 104 Ga.App. 300, 121 S.E.2d 684 (1961) , decided in the same week.

(n39)Footnote 39. If an agreement is too indefinite and uncertain for enforcement, but performances of value have been received under it, a restitutionary remedy is available. See Tompkins v. Sandeen, 243 Minn. 256, 67 N.W.2d 405, 49 A.L.R.2d 1162 (1954) , noted herein under § 1174.