A. Introduction

• Author: John D. McCamus
• Profession: Professor of Law. Osgoode Hall Law School, York University
• Pages: 91-92

Page 91

In order for an agreement to be enforceable, the parties must have reached agreement on all the essential terms of their agreement. As is often said, the parties must make the agreement, the courts will not make it for them. Further, the parties "must so express themselves that their meaning can be determined with a reasonable degree of certainty."¹Where the parties either fail to reach agreement on all the essential terms of the agreement or express themselves in such fashion that their intentions cannot be divined by the court, the agreement will fail for lack of certainty of terms. In such circumstances, the parties have not reached a sufficient consensus ad idem to enable the courts to enforce their agreement. At the same time, the requirement of certainty of terms and its underlying rationale must be balanced against the practicalities of transactional negotiations. Parties may be unable to anticipate and articulate agreements with respect to future events and may intentionally leave gaps in their agreements to provide for future and mutually satisfactory accommodations. Parties, especially those not advised by lawyers, may be unaware of the nature of all the essential terms to be stipulated in the particular context. Parties may assume that reasonable or "the usual" arrangements will apply to an undetermined matter. In

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all such cases, the parties may intend to enter into binding contractual arrangements and believe that they have successfully done so. Rigid application of the doctrine of certainty, therefore, could produce much mischief, especially in cases where the parties detrimentally rely on the assumption that a valid and enforceable agreement has been created. Accordingly, courts will attempt to fill gaps and find meaning in agreements in circumstances where it appears that a binding agreement was intended by the parties.

The law of certainty of terms, then, reflects this tension between a requirement that the parties reach a complete and intelligible agreement and a reluctance to defeat the expectations of the parties that an enforceable agreement has been created. As Lambert J.A. observed in Griffin v. Martens:²"As long as an agreement is not being constructed by the court, to the surprise of the parties, or at least one of them, the courts should try to retain and give effect to the agreement that the parties have created for themselves."³As we shall see, the leading and modern authorities tend to place...