"Expressed in this way, the principle of implied terms looks to be based on the need to find terms to which the parties have not adverted but which the law supplies in order to complete the contract for the parties. The qualification in relation to complex commercial contracts reflects the absence of general implications for unique transactions. This may explain what otherwise appears to be an inconsistent proposition, namely, the law does not permit a court to imply terms for the purpose of making incomplete negotiations an enforceable contract. The proposition seems to be based on the view that in order for an implication to be made, the parties must have finally agreed on a bargain. Accordingly, it is not sufficient for a court to be able to identify terms which, if they were implied, would complete an otherwise incomplete agreement. Instead it must be possible to infer-under normal principles governing implication-that the parties impliedly agreed to the matter which has not been the subject of express provisions. Expressed in a slightly different way, where, for example, a contract is silent on matters such as the price or quality of the subject matter of the contract, it must be possible to infer that the parties agreed to a particular standard which a court is capable of implying. Accordingly, an implication of a reasonable price or reasonable quality can only be made if that was the agreement. Mere consistency with the contract is not enough for the simple reason that a court cannot make a contract for the parties."
149 Carter further draws attention to Australian and New Zealand Banking Group Ltd v Frost Holdings Pty Ltd [1989] VR 695 which is another case where there was held to be no enforceable contract where essential terms, including the price, size, style and design of goods to be supplied was not agreed. The court would not imply terms to deal with those matters as there was, in the Court's view, nothing to indicate the basis for implication.
150 To my mind the approach taken by Hely J in Australia China Business Bureau was entirely correct. His Honour appears to have focused upon the significance of complex contractual terms. There is a limit in the extent to which a court can define for the parties, what they ought themselves to have defined, in order to reach agreement. In the present instance this is particularly the case when one takes into account the failure to agree upon prices and quantities for all but the initial 12 months of the term.
Finding as to binding agreement
151 In my view the MOU accomplished a limited purpose in that a binding agreement was reached but only for the first 12 months and only in terms of the first three named products. The fact that the parties saw fit to provide for an agreed regime of pricing and quantity for the first 12 months is a most emphatic indicator that the parties did not intend to be bound in the absence of being able to follow suit in terms of reaching like agreements, for the following years.
152 Insofar as the fourth named product was concerned, the parties intended that unless and until they agreed upon pricing and quantity, that product be excluded from the ambit of the initial 12 month period arrangement
153 I do not see that the necessity for the parties to agree upon expiry dates, renders that portion of the MOU uncertain or void, as an agreement to agree. I would read into the MOU an implied term that the product supplied would require to have a reasonable shelf life in terms of marketability.
154 In the result the parties are seen to have reached a limited agreement operative for the initial 12 months in respect of which Aventis had granted to MDA an exclusive distributorship agreement covering the initial three products.
155 The parties obviously intended that during the initial 12 months term they would be in a position to agree upon prices and quantities to be operative for the following 12 months and in due course for the final twelve months of the initial term. They were obviously content to go forward, anticipating that the missing detail, in respect of the products and pricing and quantities, would be the subject of further agreement.
156 Arguably the route to the above finding is simply that of construing the MOU. Reference has already been made to the parties being the masters of their contractual fate. That is exactly what has happened here. The express reference to prices and quantities included in the MOU makes relatively transparent what was the intent. If it be necessary to approach the analysis by an implied term route, the same result follows. It was clearly an anticipation of the parties that they would in fact be able to agree upon matters such as price and quantity of product. It was an implied term of the MOU, that in the absence of being in a position to so agree, the parties intended that their exclusive distributorship agreement would no longer be binding upon them
157 The extent to which the agreement that MDA would have exclusive access to all plasma products of Aventis [otherwise than the four named products] was enforceable is unnecessary for present decision. Likely that segment of the MOU could not be binding unless and until the necessary definition came forward in a consensual fashion. The exclusive access provision had to be tethered to a binding agreement. It could not survive in vacuo. Such a provision could endure only as attached to so much of an agreement as proved to be enforceable. The parties anticipated that form of agreement coming forward, but until it did, this provision could not be enforced.
158 It is strictly unnecessary to go further in terms of determining the issues in this case. The fact is that on the evidence there never was agreement reached in terms of identification of prices and quantities for products following the initial 12 month period. The agreement insofar as binding the parties for the first 12 months, simply ceased to bind them at the end of the initial 12 month period.
Alternative analysis
159 However before continuing it is appropriate to recognise MDA's case in terms of the posited minimalist binding distributorship agreement which would have only the terms earlier hypothesised.
160 A mainstay of MDA's case is that such a minimalist distribution agreement constitutes a bargain which effectively binds the principal [which renders itself unable to distribute within the territory otherwise than through the distributor]. The proposition is that this inhibition would mark the obviously intended need for the parties to be able to agree upon such matters as price and quantity and the like. Effectively the contractual bargain would be akin to a conventional right of first refusal. The proposition is that this would have been seen by the parties as placing tremendous emphasis on the need for the parties to be able to later agree on matters such as price and quantity. The proposition is that there would be considerable advantages and very little disadvantages to either party in carrying out their best efforts to so agree. Hence MDA's contention would presently, if accepted, have the result that such a contract would be binding from its commencement. Applied to the present circumstances that contention may have led to a holding that the agreement would continue even after the initial 12 months and even in the absence of any further agreement as to price and quantity of product.
161 The case so sought to be made is flawed by reason of: