MOU - Agreeing to Agree: Just a Double Up?
A memorandum of understanding (MOU) can be a useful mechanism to facilitate a comforting commitment between two parties to either informally agree, or to agree to negotiate an agreement. While for some this may inspire confidence and assist in speeding up negotiations, for others, in light of the supposedly non-binding legal nature of such agreements, the MOU is nothing more than a benchmark against which future drafting of a formal contract can be measured.
Often MOUs are employed by government agencies in their interdepartmental dealings as, generally, two different arms of the same legal entity are unable to contract. MOUs allow agencies to clarify roles and responsibilities and manage expectations in joint projects.
For the private sector, it may be appropriate for parties to enter into an MOU where a development project is unusually complex and the detail is undetermined. In those circumstances the MOU might, for example, outline the commercial intent of the parties or the framework for the transaction..
In considering the implementation of an MOU during negotiations, parties should address whether they intend the document to impose legally binding obligations. If such an intention is required, an agreement or deed may be better suited to protecting the parties and avoiding duplication of work, otherwise the MOU should specifically state it is non-binding or state which clauses are intended to be binding (confidentiality, exclusive dealings). Common law has tended to construe MOUs as non-binding. Occasionally a presumption of intention will apply if intention is unclear, terms are clear and consideration is present.
If due diligence is being conducted prior to the signing of any contract, an important consideration is confidentiality. Whether non-disclosure assurances are effected as a binding clause in an MOU or choosing to enter into a Non-Disclosure Agreement, the significance of confidentially regardless of the outcome is paramount. If the parties are after a quick turnaround in documents to achieve confidentiality (even if other ‘in principle terms’ have been agreed) a template non-disclosure agreement will probably suffice with the ‘in principle terms’ best left for the formal agreement or deed. There are no ‘template’ MOUs as each deal will be different.
MOUs are absolutely appropriate in some circumstances but they shouldn’t be used as the automatic first step in a new deal.
To consider: Are you better off pausing while the formal, legally binding (and confidential) contract is drafted which has the capability to protect both parties versus the potential uncertainty of whether an MOU is binding? Or will an ‘intentionally ambivalent’ preliminary agreement conveniently provide you with the flexibility to opt-in or opt-out prior to the formalisation of a contract?
First published in B2B Magazine.
 Arthur, John, ‘Contract Law – Avoiding Legal Risk With MOUs & Heads of Agreement’, Professional Development Young Lawyers Lecture Series 2011 (18 October 2011) 2.