Please ensure Javascript is enabled for purposes of website accessibility

10-3278 & 10-3475 Denil v. deBoer, Inc.

By: WISCONSIN LAW JOURNAL STAFF//May 13, 2011//

10-3278 & 10-3475 Denil v. deBoer, Inc.

By: WISCONSIN LAW JOURNAL STAFF//May 13, 2011//

Listen to this article

Contracts
Agreements to agree

Where parties bargained in good faith, neither can sue the other for failure to use “best efforts” to reach agreement on a buy-sell contract.

“If the best efforts undertaking is not an agreement to agree, what might it be? The contract does not define the phrase, and the parties themselves may not have had any clear idea; they have not proffered any communications exchanged during the negotiations. Maybe they were thinking along the lines of a duty that labor and management have under federal labor law: to engage in good-faith bargaining toward a contract with respect to those issues that employers must discuss with unions. First National Maintenance Corp. v. NLRB, 452 U.S. 666 (1981). This duty requires an exchange of proposals and obliges each side to consider the other’s requests seriously, and to compromise when possible, but it does not compel either side to accept the other’s proposals. Golden State Transit Corp. v. Los Angeles, 475 U.S. 608 (1986). If that’s the meaning of this “best efforts” clause, then both sides performed as required. They exchanged many proposals, suggested amendments, made counterproposals, and so on; the negotiations lasted for six months. The fact that one final disagreement— how to divide 25% of any surplus on sale of the business—could not be bridged does not imply that either side failed to bargain in good faith. deBoer did not have to accept plaintiffs’ final proposal, any more than plaintiffs had to accept deBoer’s.”

Affirmed.

10-3278 & 10-3475 Denil v. deBoer, Inc.

Appeals from the United States District Court for the Western District of Wisconsin, Crabb, J., Easterbrook, J.

Full Text

Polls

Should Steven Avery be granted a new evidentiary hearing?

View Results

Loading ... Loading ...

Legal News

See All Legal News

WLJ People

Sea all WLJ People

Opinion Digests