The Chancery Court case of Ramone v. Lange, download file, involved two persons who intended to form an LLC and although they negotiated many terms over a period of time, they never finalized an LLC Operating Agreement. The court refused to find a conventional contract but found that promissory estoppel applied to a limited extent.
Footnote 56 is important for reciting the Delaware law that a “mere agreement to agree” without reasonably objective controlling standards is not an enforceable agreement. The court referred to Section 15-202(a) of Title 6 of the Delaware Code which provides that a general partnership can be formed whether or not the persons intended to form a partnership, but determined that though the result of their inability to agree on the terms of a final, executed LLC agreement, could potentially have resulted in a general partnership being formed, that result would not be warranted based on the facts presented. The court also discussed the fundamental elements of contract formation and the details required for an acceptance to be the “mirror image” of an offer in order to create a binding contract.