CONCEPTO Y EFICACIA DE LOS PRINCIPALES ACUERDOS PRECONTRACTUALES EN DERECHO ESTADOUNIDENSE.

Abstract

The main types of precontractual agreements in the USA are agreements to negotiate, memoranda of understanding and agreements to agree, although the names are generally used interchangeably by businesspeople, courts and legal scholars. Agreements to negotiate regulate the negotiating process. The obligations they envisage include the obligation of confidentiality, the obligation to negotiate in good faith, the obligation to negotiate on an exclusive basis for a certain time and the milestones in the process. These obligations have been repeatedly regarded as binding by US courts when there is a true desire to create a binding agreement and the obligation is specific enough to be discharged. In this sense, the obligation to negotiate on an exclusive basis has been regarded as binding. Courts generally grant reliance damages in cases of breach of binding obligations. Such damages usually include the expenses incurred during negotiation but not the loss of the profit the planned contract could have earned. Also, they do not generally encompass any loss of profit from lost opportunities. Similarly, the courts mainly feel that such agreements do not obligate the parties to sign the planned contract and cannot be regarded as the definitive contract. Memoranda of understanding usually cover the partial agreements reached during negotiation. Their main effect pursuant to US case law is to prevent the parties from going back on partial agreements or insisting on terms inconsistent with negotiations thus far with a view to severing negotiations. Like agreements to negotiate, memoranda of understanding, if breached, generally give rise to reliance damages as described above. Moreover, memoranda of understanding create no obligation to conclude the definitive contract, although they can be used as proof of the state of negotiations in order to sue for damages due to an ungrounded severance of negotiations. Agreements to agree establish the obligation to sign a planned contract. Such obligations are regarded as unenforceable in the United States. Therefore case law tends to apply the all-or-nothing rule, finding that either the definitive contract has been signed when the circumstances and terms of the contract so suggest or that there is no obligation whatsoever.