Restatement (Second) of Contracts · Section § 33
An overview of the principles governing the certainty of terms in contracts as articulated in Section 33 of the Restatement (Second) of Contracts.
Source: Restatement Restatement (Second) of Contracts § § 33
Even though a manifestation of intention may not be intended to be binding, it may still constitute an agreement if it is sufficiently definite in its terms. An agreement is not enforceable unless the parties have a reasonably certain basis for giving an appropriate remedy.
This section emphasizes that contracts need to have definite terms to be enforceable. If the terms are vague or uncertain, it may not be possible to determine what the parties intended, making the agreement unenforceable.
Parties must provide a reasonably certain basis for determining breach and an appropriate remedy.
Willingness to negotiate terms does not indicate that a contract exists.
Illustration 1
If a contract states 'I will sell you my car for a fair price,' this lacks certainty because 'fair price' is not defined.
Illustration 2
A contract that specifies 'I will sell you my car for $10,000' is enforceable as it provides clear terms.
Highlighted that definite terms are required for enforceability, where a written agreement was considered a valid contract despite claims it was just a joke.
Understanding Section 33 is crucial for legal practitioners when drafting contracts to ensure that terms are clear and that an agreement can be enforced. It guides parties in negotiating and finalizing contracts to avoid ambiguity that can lead to disputes.