The Delaware Supreme Court recently clarified for the first time the test to be used in Delaware to determine whether a contract’s terms are sufficiently definite to create an enforceable contract. In Eagle Force Holdings, LLC v. Campbell, No. 399, 2017 (Del. Supr., May 24, 2018), the court addressed whether various documents signed by the parties met the minimum requirements for enforceable agreements, and the court also observed that personal jurisdiction is established when one is a party to an agreement with a forum selection clause.
Basic Background Facts
The facts presented in this decision by Delaware’s high court present a cautionary tale about the problems that arise when parties sign an agreement despite the first page being marked “draft” at the top and having schedules attached that are blank. The key facts include the following:
- Two people, Kay and Campbell, agreed to form entities in connection with starting a new business that each would own 50% each of, at least initially. Campbell, for his part, was to contribute intellectual property and Kay would provide about $2 million.
- Kay contributed the money before final and comprehensive documents were in place and before several key issues, including clear ownership to the IP, were resolved.
- Although the parties initially signed signature pages for their attorneys to hold in escrow until the deal was consummated, the parties later met–without their attorneys–and signed a Contribution Agreement and an LLC Agreement that were revised after the parties had submitted signature pages to their attorneys. The version the parties signed (without their attorneys present) was marked on the first page as a “draft”. At least one of the attorneys for one of the parties was not aware of the signing, and when he returned from vacation, the attorney sent additional proposed edits to the agreements.
- After signing the agreements marked “draft” with blank schedules, the parties later acknowledged that there were several open issues that were still not yet resolved. Soon the parties took different positions about whether the agreements they signed were binding or not, in light of the open issues, for example.
- Kay filed a complaint in the Court of Chancery and obtained expedited injunctive relief, including a status quo order.
- Campbell appeared initially at an evidentiary hearing but then failed to appear for the second day of the hearing, and other allegations of contempt for his failure to comply with the court’s orders were also presented on appeal.
- Related to the contract formation issues and the contempt allegations, Campbell argued that the court did not have personal jurisdiction over him.
Key Legal Principles in the Court’s Decision
- Regarding the issue of personal jurisdiction, the court explained that the parties’ agreements both contained a forum selection clause. If a party consents to jurisdiction by contract, such as through a forum selection clause, that is sufficient to impose personal jurisdiction and the normal personal jurisdiction analysis involving the long-arm statute and the Due Process analysis of “minimum contacts” is not necessary. See footnotes 137 and 138.
- The court recited the three basic requirements for a valid contract: (i) the parties intended that the instrument would bind them, demonstrated at least in part by its inclusion of all material terms; (ii) these terms are sufficiently definite; and (iii) the putative agreement is supported by legal consideration. This formulation subsumes the concept of an offer and acceptance.
- Delaware law applies an objective test for determining whether the parties intended to be bound–not subjective intent. Citing Professor Williston, the court observed that a signature is the natural indication of assent in the absence of an invalidating cause such as fraud, duress, mutual mistake or unconscionability. See footnote 153.
- For the first time, the Delaware Supreme Court announced a standard to determine whether the terms of a contract are sufficiently definite, as follows: “A contract is sufficiently definite and certain to be enforceable if the court can–based upon the agreement’s terms and applying proper rules of construction and principles of equity–ascertain what the parties have agreed to do.”
- Quoting from the Corbin treatise on contracts, the court noted that: “The courts must take cognizance of the fact that the argument that a particular agreement is too indefinite to constitute a contract frequently is an afterthought excuse for attacking an agreement that failed for reasons other than the indefiniteness.” See footnote 190.
- There was an ancillary issue of whether the Court of Chancery could impose sanctions for violation of a court order prior to establishing that it had personal jurisdiction over the person who violated the order. The Supreme Court ruled that: “when a Delaware court issues a status quo order pending its adjudication of questions concerning its own jurisdiction, it may punish violations of those orders with contempt and for sanctions, no matter whether it ultimately finds that it lacked jurisdiction.” The court reasoned that this principle was especially applicable in this case because the party involved appeared in person and litigated the merits of the case.