8.11.3 However, the line between illegitimate pressure and purely commercial (and legitimate) pressure is very correct and, where it falls, often depends on the particular facts of the case. In general, the adequacy of the parties` behaviour seems to be an important consideration. For example, a party that threatens to break a contract with another if the latter does not accept its higher payment request does not exert illegitimate pressure if, due to acute financial conditions, it is the only price available to it. However, if the dominant party does not present the same requirement for any other reason than the opportunistic desire to exploit the other party`s vulnerability for financial gain, such behaviour is less likely to be considered positive. The Tribunal noted the distinction between an agreement that uses the best efforts to achieve a given outcome and an agreement to leverage the best efforts to reach agreement on an essential clause of a contract. He found that the option agreement fell into the latter category. He also briefly referred to the nature of an “essential issue.” In the case of the MRI business, a matching plan had been agreed between the parties; the Court of Appeal upheld an unspoken clause that the shipping plan was appropriate. The Commercial Court considered that a shipping plan was a “routine matter” and that shipping plans had been agreed in the MRI trade in each of the previous two years (i.e., easy to evaluate). Furthermore, in this case, delivery dates are essential and are not easy to assess, as no criteria have been defined and there are many relevant considerations for agreeing to a delivery date. Under these conditions, the original contract often contains a provision under which the parties indicate that they intend to enter into a new agreement in the future. Sometimes these provisions define detailed mechanisms for this purpose, whereas sometimes they can only be one or two sentences.
This approach buys the parties time to build trust, develop the products or processes that are marketed on the line, and establish the reasons and commercial conditions for each subsequent engagement. 8.5.3 If the parties have rescinded their agreement in writing, the question of whether a specific statement (oral or written) is part of the contract itself depends on the application of the rule of evidence.