Sometimes a party to a contract will claim that it cannot be enforced because it is void for uncertainty. But that is a serious outcome, so how do the courts approach the issue?
In Openwork Ltd v Forte the Court of Appeal said that, although the case law indicates that cases in which contractual provisions are challenged as being void for uncertainty are to be decided on their own facts, and that courts should not transpose a decision on a term in one case to a term in another, there is clear guidance as to how courts should approach an argument that a contractual provision is too uncertain to be enforced.
The court should strive to give some meaning to agreed contractual clauses if at all possible. As noted in another case, the court’s role in a commercial dispute is to give legal effect to what the parties agreed, not to throw its hands in the air and refuse to do so because the parties have not made its task easy. To hold that a clause is too uncertain to be enforceable is a last resort. And, as stated in a textbook on contract interpretation, a contract provision will only be void for uncertainty if the court cannot reach a conclusion as to what was in the parties’ minds or where it is not safe for the court to prefer one possible meaning to other equally possible meanings.