Whether or not negotiations can still be broken off depends on whether or not a “legally relevant trust” has arisen on the part of the other party. See the blog "Break off! Is that possible?" That trust can arise if there is agreement on sub-issues but not on the whole. These sub-topics do not all have the same relevance, the same value in determining whether that trust has arisen. This blog explains what the differences are and how lawyers view them.

We start with the essentials, the “essentialia”. These are the legal preconditions. In the case of an agreement mentioned in the law, these are simply stated in the law. Take the purchase agreement. You have an object and in return you have the buyer's willingness to acquire that object for a monetary price. Essentials are then (having agreement about) the object and the price. Don't you agree on that yet? then there is no agreement.

But very often you are not there yet when there is agreement on those essentials. There are often other topics that are important for both parties to arrange. These are topics that usually depend on the nature of the agreement to be concluded. If this concerns the purchase of garden land, agreement on how disputes are settled is not essential. When it comes to clearing forests in Africa and subsequently being allowed to drill for oil, it is clear that the choice of the applicable legal system, but also the way in which the disputes between, for example, the government of Togo and the Western oil company are settled are very important. We also call these types of subjects “naturalia”.

Then we go to the third category, the “accidentalia”. That sounds like accidents, but they aren't. This is the most difficult category in which most legal proceedings are conducted. These are topics in the negotiations that are objectively not a very essential part of the intended agreement, but which are, according to at least one of the two parties, and which has made this known to the other. That could actually be anything!

The word “knowable” is important here. If you do not let the other person know that something is accidental for you, you will no longer be able to say later: “We couldn't agree on it, so I'm breaking off the negotiations.” The other person must hear from you. This can be done very explicitly and in writing, but it can also be done during a lunch conversation. The question is of course how you prove that the other person knew that something was an accidentalium for you.

Finally, we have the blank spots: in almost every commercial contract there are elements that are so insubstantial in terms of both quality and quantity compared to what has already been arranged that even if there is no agreement about them yet, they are not included. stand in the way of reaching an agreement. We call this a “rump agreement”. That is an agreement in broad terms, but it is simply a hard agreement. You can demand compliance with that, you can dissolve or destroy it. But there are still a limited number of unresolved points that parties still have to flesh out, or which are subject to reasonableness and fairness. But then you already have a deal.

Before you start negotiating, it is recommended that you make a list of all the elements that you want to arrange through the agreement. You then determine what the essentialia are, based on the law and the type of agreement. Then you determine the naturalia and the accidentalia. And with that list in hand, you choose what you want to make explicit to the other party and when and in what way. Moreover, it helps you determine what points you want to have covered in the contract, and what are any less important points that can be given away.