“A sale and purchase agreement can only be validly concluded if there is a consensus with respect to all essential and substantial elements.”

In its judgement of 4 March 2020, the 𝐜𝐨𝐮𝐫𝐭 𝐨𝐟 𝐚𝐩𝐩𝐞𝐚𝐥 𝐨𝐟 𝐀𝐧𝐭𝐰𝐞𝐫𝐩 ruled that the conclusion of a binding letter of intent (LOI) did not constitute a binding sale and purchase. The Court observed that, as an essential element of the sale, the price was not determined or determinable based on the LOI (as the price was agreed “subject to due diligence”), and the parties had not referred to other substantial elements (e.g. representations and warranties of the seller).

👉 Want to learn more about this judgement and other key Belgian M&A cases from 𝐭𝐡𝐞 𝐩𝐚𝐬𝐭 𝟐𝟓 𝐲𝐞𝐚𝐫𝐬? You can find them all here, together with our related annotations.

📊By the way, did you know that 𝐭𝐡𝐞 𝟓𝐭𝐡 𝐞𝐝𝐢𝐭𝐢𝐨𝐧 𝐨𝐟 𝐭𝐡𝐞 𝐌&𝐀 𝐒𝐮𝐫𝐯𝐞𝐲 shows that an LOI or similar precontractual document was signed in 77% of the examined transactions? We will be organizing a 𝟔𝐭𝐡 𝐞𝐝𝐢𝐭𝐢𝐨𝐧 𝐨𝐟 𝐭𝐡𝐞 𝐌&𝐀 𝐒𝐮𝐫𝐯𝐞𝐲 this year. Leave your contact details on this form to participate and help us find out whether this trend has continued.

Follow along with our corporate and M&A team as we highlight more interesting case law in the coming weeks!

𝐀𝐧𝐲 𝐪𝐮𝐞𝐬𝐭𝐢𝐨𝐧𝐬? Please contact the authors - Bart Bellen | Ine Schockaert | Kristof De Wael | Karlien De Ryck | Maarten Cnudde | Charlotte Van Weehaeghe | Ward De Byser | Marthe Wouters

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