Agreement to agree (in the future) does not make for a judicially enforceable contract.
ELEMENTS OF CONTRACT - PRECISION IN DEFINING TERMS AND OBLIGATIONS IS REQUIRED
The elements of a valid and enforceable
contract are: (1) an offer; (2) an acceptance in strict compliance with the
terms of the offer; (3) a meeting of the minds; (4) each party's consent to the
terms; and (5) execution and delivery of the contract with the intent that it
be mutual and binding. Hubbard v. Shankle,
138 S.W.3d 474, 481 (Tex. App.-Fort Worth 2004, pet. denied).
The necessary
elements of both written and oral contracts are the same and must be present
for a contract to be binding. Id. A
contract's material terms must be sufficiently definite and reasonably certain
to both parties. Fort Worth Indep. Sch.
Dist. v. City of Fort Worth, 22 S.W.3d 831, 846 (Tex. 2000).
Accordingly,
all essential terms of the agreement must be agreed upon before a contract may
be enforced by the courts. T.O. Stanley
Boot Co., Inc. v. Bank of El Paso, 847 S.W.2d 218, 221 (Tex. 1992). If the
terms of an alleged contract are so indefinite that it is impossible for the
courts to determine the rights and obligations of the parties, it is not an
enforceable agreement. Shin-Con Dev.
Corp. v. I.P. Invs., Ltd., 270 S.W.3d 759, 765 (Tex. App.-Dallas 2008, pet.
denied). Parties may agree on some terms sufficient to create a contract,
leaving other provisions for later negotiation. See Scott v. Ingle Bros. Pac., Inc., 489 S.W.2d 554, 555 (Tex.
1972); Ski River Dev., Inc. v. McCalla,
167 S.W.3d 121, 133 (Tex. App.-Waco 2005, pet. denied). When an agreement
leaves material terms open for future adjustment and agreement that never
occur, it is not binding upon the parties and merely constitutes an agreement
to agree. See Fort Worth Indep. Sch. Dist.,
22 S.W.3d at 846; Ski River, 167
S.W.3d at 134.
SOURCE: DALLAS COURT OF APPEALS - No.
05-12-00653-CV – 2/21/2013
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