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A memorandum of understanding (MOU) falls somewhere between a written contract and a handshake deal. It is a preliminary written agreement, outlining the framework or key terms they will later include in a formal contract. An MOU is a useful tool because it helps ensure all parties are on the same page. Generally speaking, the document is not legally binding. However, if its content resembles that of a contract, it may be legally binding and therefore enforceable. This article sets out the considerations you should take into account when dealing with an MOU.

When Should You Use an MOU?

An MOU is often used in commercial partnerships to establish mutual goals and expectations. It sets out the rights and obligations of each party, which they incorporate into a formal contract at a later date.

You may want to use an MOU, especially when you:

  • do not want to form legal relations;
  • want to mark a mutually beneficial partnership; or
  • want to outline the mutual goals of a commercial partnership.

What is the Contents of an MOU?

Each MOU is unique to each partnership. Accordingly, it is useful to keep in mind what you and the other party have agreed to and what your mutual goals are when drafting an MOU.

An MOU may include:

  • the purpose of the commercial partnership;
  • the common goals of the parties;
  • the roles of each party;
  • any agreed upon deadlines; and
  • how the parties will resolve disputes.

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What Are the Key Differences Between Contracts and MOUs?

ContractsMOUs
Terms are legally bindingTerms are not usually legally binding
Enforced by courtsNot usually enforced by courts
The parties intend to form legal relationsThe parties do not intend to form legal relations
Must have an exchange of promisesDo not need an exchange of promises
Agreement is certain and completeAgreement can still be in the negotiation process

Intention

Intention to form legal relations is a key difference between contracts and MOUs. When entering a contract, the parties have an intention to be legally bound by the terms.

On the other hand, when signing an MOU, you do not need to intend to be legally bound. Instead, your intention can be to clarify the mutual goals of your commercial partnership.

However, an MOU may be legally binding if it meets all the elements of a binding contract. Therefore, if you want to avoid uncertainty and clarify your intentions to enter into a non-legally binding MOU, it is a good idea to include a clause explicitly stating this.

To reduce uncertainty, you can insert a clause into the MOU to stipulate that you do not intend to be legally bound by the terms of the MOU. By doing so, it will a party to the MOU cannot enforce the document in court if the other party does not follow what they agreed.

Purpose

The purpose of contracts is to create legally binding obligations and rights between parties. Therefore, courts can enforce contracts and breaches have legal consequences.

On the other hand, MOUs record agreements that are not necessarily legally binding. Parties use them to mark a commercial partnership rather than to create legal obligations. Specifically, MOUs may be used to define the goals and roles of parties in a commercial partnership. Generally, breaches do not have legal consequences and it is up to the parties to resolve disputes.

Certain and Complete

A contract has to be a certain and complete agreement, whereas an MOU can still be in the negotiation process. For a contract to be enforceable, the parties must have reached an agreement on all key terms. On the other hand, parties often use MOUs when they are still negotiating aspects of their agreement.

For example, a supplier and a manufacturer may write an MOU to initiate a professional partnership, stating how they will work together to achieve mutual goals. They do not need to have agreed upon prices and the standard of products yet. They may later enter into a supplier contract that states the cost and specifications of the products in question.

Because contracts are formal agreements that create legal obligations, they must have an agreed-upon exchange of promises. For example, in a supplier contract, the supplier promises supplies and, in return, the buyer promises money. If the buyer does not promise anything in return for the supplies, the contract is not enforceable.

MOUs do not require the same set requirements as binding contracts. As a result, they are fairly flexible and you can include whatever you deem necessary in your MOU.

Key Takeaways

When initiating a business partnership, it is useful to use an MOU to outline the framework of that partnership. Using an MOU will help ensure all parties have the same expectations and are aware of their responsibilities. An MOU is unique to each partnership, and typically outlines what the parties have negotiated, including common goals and responsibilities.

It is important to note that MOUs are not always legally binding. Therefore, if the relationship is of high risk and a lot is at stake, a contract might be a more appropriate form to record the agreement. If you have any questions, contact LegalVision’s contract lawyers on 1300 544 755 or fill out the form on this page.

What is a memorandum of understanding?

A memorandum of understanding (MOU) falls somewhere between a written contract and a handshake deal. It is a preliminary written agreement, outlining the framework or key terms they will later include in a formal contract.

Is an MOU legally binding?

Generally speaking, the document is not legally binding. However, if its content resembles that of a contract, it may be legally binding and therefore enforceable.

What is the difference between an MOA and MOU?

An MOA stands for a memorandum of agreement. In comparison, an MOU stands for memorandum of understanding. There are no legal differences between the two – the two terms are interchangeable.

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