As known, preliminary agreement can be binding or not. The question is what makes a preliminary agreement binding and consequently enforceable? At this point, there is going to have a big difference because in Brazil the legal system is the Civil Law, and in the United States it is the Common Law. In the United States’ legal system, be that an “agreement with open terms” or an “agreement to negotiate with good faith”, the two main features important to pay attention to are the primarily reason why the parties had when they decided to make a preliminary contract and the terms existed in the agreement. The intention of the parties is set with the language and the other variables that will be used to know whether the contracts are binding or …show more content…
From a subjective point, good faith means to be honest with the other party including the idea of the mutual assent of the minds. From an objective point, good faith is known as a “performance obligation [that] protects the justified expectations of one party by constraining the discretion enjoyed by the other under the contract” (Burton & Andersen 1995, 367). Considering these perspectives, good faith can be considered a duty in some legal systems more then in others. In the Brazilian legal system, good faith is adopted more in a subjective view, it is supplemented by the objective approach and it is a duty to the parties during all the negotiations and after that on the performance of the contract. As a codified legal system, the Article 422 on the Brazilian Civil Code expressly determines that “The parties are obligated to have during the negotiations and in the performance of the contracts, the principles of probity and good faith” (Brazilian Civil Code, article 422) In an objectively perspective “the good faith has three functions: the interpretative function, based on Article 113; the integration of legal business, based on Article 412, and the control of the limits of the exercise of the right, based on Article 187.” (Mattos 2008,