often the case that no date of performance is fixed by the contract. Unfortunately, law and business practice do not always converge, since a rigid application of the so called general rule on incompleteness may result in a decision to the effect that there is no binding contract where the parties have failed to cover all aspects of their agreement. In relation to matters such as the price in a contract for the sale of goods or for the supply of services, the absence of agreement is not fatal since certain statutory provisions allow for the substitution of a reasonable charge for the goods or services provided: Sale of Goods Act 1979

doi:10.4324/9781843141518-108

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often the case that no date of performance is fixed by the contract. Unfortunately, law and business practice do not always converge, since a rigid application of the so called general rule on incompleteness may result in a decision to the effect that there is no binding contract where the parties have failed to cover all aspects of their agreement. In relation to matters such as the price in a contract for the sale of goods or for the supply of services, the absence of agreement is not fatal since certain statutory provisions allow for the substitution of a reasonable charge for the goods or services provided: Sale of Goods Act 1979

ABSTRACT

May & Butcher Ltd v R [1934] 2 KB 17n, HL, p 21 Viscount Dunedin: To be a good contract, there must be a concluded bargain, and a concluded contract is one which settles everything that is necessary to be settled and leaves nothing to be settled by agreement between the parties. Of course, it may leave something which still has to be determined, but then that determination which does not depend upon the agreement between the parties. In the system of law in which I was brought up, that was expressed by one of those brocards of which perhaps we have been too fond, but which often express very neatly what is wanted: Certum est quod certum reddi potest. Therefore, you may very well agree that a certain part of the contract of sale, such as price, may be settled by someone else. As a matter of the general law of contract all the essentials have to be settled. What are the essentials may vary according to the particular contract under consideration. We are here dealing with sale, and undoubtedly price is one of the essentials of sale, and if it is left still to be agreed between the parties, then there is no contract. It may be left to the determination of a certain person, and if it was so left and that person either would not or could not act, there would be no contract because the price was to be settled in a certain way and it has become impossible to settle it in that way, and therefore there is no settlement. No doubt as to goods, the Sale of Goods Act 1893 says that if the price is not mentioned and settled in the contract it is to be a reasonable price. The simple answer in this case is that the Sale of Goods Act provides for silence on the point and here there is no silence, because there is a provision that the two parties are to agree. As long as you have something certain, it does not matter. For instance, with regard to price it is a perfectly good contract to say that the price is to be settled by the buyer ...