Negotiation and Formation of International Contracts in English and French Law

Abstract

Precontractual engagements such as letters of intention and preliminary commitments do often go well beyond the scope intended by the eventual contracting parties, during negotiations aiming at an agreement. No problem if negotiations succeed, since preliminary ties will be superseded by the main agreement executed by the parties. If negotiations do not succeed, however, the same parties may find themselves unwillingly bound to a quite unexpected extent, provided the right combination of formal and structural elements (i.e., offer, acceptance and consideration) is present (it may be argued, even silence, in some cases, can be a lawful equivalent to acceptance) although the parties might not have fully envisaged their respective intention to create legal relations.