A contractual term that signifies nothing cannot be enforced, and for a considerable time that proposition performed most of the work in cases where parties had agreed to something and left part of it open. An agreement to purchase goods at a price to be agreed was not a contract; it was an agreement to negotiate, and courts declined to construct one for the parties. The rule was straightforward, and it generated results that everyone could recognise were wrong -- parties who had performed for years under an arrangement they both understood were informed they had never possessed an agreement at all.
What courts do currently is different, and the difference is customarily characterised as a relaxation of the certainty requirement. It is more accurately described as an alteration in what the requirement demands. The contemporary question is not whether the term articulates its content but whether the court can ascertain that content by some route the parties can be taken to have accepted: a trade standard, a course of dealing between these parties, a formula implicit in the remainder of the document, an objective criterion such as a market rate. Where such a route exists the term is sufficiently certain, however little it specifies on its face.
That change is more substantial than it appears, because it relocates the certainty inquiry away from the words. A term reading price to be agreed is void in a market with no published rate and enforceable in a market possessing one, and nothing about the term has altered. What has altered is the availability of a determining standard outside the document, and it is the outside standard that is performing the work.
The consequence is that a contract now constitutes, in a way it previously did not, a document plus its setting. A court enforcing the open term is not filling a gap the parties left; it is holding that they did not leave one, because the setting furnished what the words omitted. That is a defensible characterisation of what commercial parties are ordinarily doing. It is also a substantial alteration in the object being enforced, and it is worth observing that the change was accomplished under the heading of applying an old rule more sensibly.
The old rule has not disappeared. Where no determining standard exists in any direction -- no trade practice, no dealings, no market -- courts still hold the term void, and they must, because there is nothing else they could do without fabricating terms. What has transpired is not the abandonment of certainty but its relocation, from the four corners of the page to the world the page was written in. Whether that constitutes an improvement depends on how confident one is that a court can ascertain the relevant setting without importing its own conception of what the bargain ought to have been, and the cases where a determining standard is asserted rather than demonstrated are where the doubt legitimately lies.
