Letter of Intent에 관한 美國法 硏究

Abstract

Under the traditional "all or nothing" approach, U.S. courts focus on the parties' intent to determine whether the letter of intent constitutes a binding and enforceable contract. If the parties intended to be bound by the letter of intent, the letter of intent is considered as a binding and enforceable agreement, while if the parties did not so intend, it is considered as a nonbinding and unenforceable agreement. To determine the parties's intent under the "all or nothing" approach, court generally rely on the objective theory of contract. the factors on which courts focus to determine intent include the language of the letter of intent; the context of the negotiations resulting in the letter of intent; the existence of open terms; whether there has been partial performance; the necessity of putting the letter of intent in final form as indicated by the customs for such transactions. By focusing on the above factors, court can determine whether, under traditional contract law principles, the parties have entered into an enforceable contract. Nevertheless, focusing on these factors may not effectuate what the parties expected from the letter of intent. If however, at the letter of intent stage court viewed the parties having obligated themselves to negotiate with one another in good faith to attempt to reach a definitive agreement, court could more closely effectuate their commercial expectations. For these reasons, several U.S. contract law commentators advocate the contract to bargain in good faith as needed intermediate position, and some U.S courts have been willing to give effect to the expressed intention of the letter of intents' parties to negotiate in good faith while many U.S. courts have refused to accord the parties of the letter of intent the freedom to impose the obligation to negotiate in good faith on themselves.