In Merthyr`s opinion, Leggatt LJ acknowledges that there may be a narrow line between the use of pre-contract negotiations to identify origin and purpose and their interpretation to interpret a contract, noting that it is clear from the above that pre-contract negotiations can play an important role in international arbitrations. However, it is not always easy to track all pre-contract projects until litigation occurs and, even if access to documents is obtained (. B for example, the disclosure phase of arbitration documents), it is not uncommon for documents to be made available in pieces or without a plan (for example, e-mails and appendices are not linked to each other. B , several identical designs without data or comparisons). As a result, the task of assembling the past can be laborious and costly. Given their relevance in litigation, it is therefore desirable to maintain a complete record of negotiations, which will often be the case when a lawyer is involved. This short article discusses the potential impact of pre-contract negotiations on the interpretation of contracts subject to English law. Other legal systems may have different approaches. Under English law, pre-contract negotiations cannot be used as an aid to the interpretation of a contract. It`s clear (or at least that`s what I thought!). The whole agreement is to prevent the parties to a written agreement from claiming statements made during the negotiation process and not contained in the written agreement. 6.- The effects of pre-contract agreements must be determined on a case-by-case basis.

The effects of pre-contract agreements can be invoked under various legal doctrines such as sola change, restitution or culpa in contrahendo. Normally, everyone can legitimize the non-injurious party instead of waiting for damages. Some of the factors considered to be damages are the intent of the parties, the language of the pre-contract agreement, the conduct of the parties, their sophistication, the nature of the proposed transaction and its applicable custom, the amounts involved or whether the parties charge trading and transaction costs at the same time. But in practice, courts generally do not award damages. One of the main grounds for not awarding damages is that it is necessary to prove that the parties` intent is related and that the alleged harm exists. And it is a very heavy burden of proof. The advice for policyholders should be: try to be as clear as possible in the wording of the contract itself to ensure that the contract clearly reflects the intentions of the parties. This will allow us to limit the inherently uncertain potential effect of what was said or done in the negotiations that preceded the treaty negotiations. The complexity and duration of the negotiations require the parties to agree on certain aspects of the future treaty.

These partial agreements should, to some extent, be binding. But this intention is at least related to the implementation of the forward-looking agreement. They are required not to renegotiate the aspects covered by these agreements. Therefore, the case law that has looked at these types of pre-contract agreements generally finds that declarations of intent are not binding, with the exception of the duty to negotiate in good faith, including the obligation not to renegotiate partial agreements reached by the parties. Pre-contract statements can be a “clause” of the contract or representation, and when it comes to litigation, it will be important to determine that, as it affects the appropriate means and the remedies available. The inability to use pre-negotiations to interpret contracts extends to those responsible for contracting and contracting.