§ 6.11.2.1 Definite and Certain Contract Terms

• Jurisdiction: Arizona

§ 6.11.2.1 Definite and Certain Contract Terms . A contract must have definite and certain terms to warrant specific performance as a remedy. 1 D. Dobbs, supra, at 144 . There can be no material defects in the terms. Further, equity requires that the contract state that time is of the essence in most cases.

One of the key issues in Daley v. Earven, 131 Ariz. 182, 639 P.2d 372 (Ct. App. 1981), was whether all essential and material terms were determined for a complete contract to exist. The Arizona Court of Appeals specifically upheld the trial court’s finding that the option to buy in the lease, supported by the escrow instructions, was intended to be a binding agreement. It held that “absolute completeness in every detail is not a prerequisite of specific performance.” Id. at 185, 639 P.2d at 375. The court in Hall v. World Savings & Loan Ass’n, 189 Ariz. 495, 943 P.2d 855 (Ct. App. 1997), reconfirmed that “the requisite writing need not be in a single document.” The court cited the Daley decision as ruling that a “court will order specific performance if agreement appears in several documents identifiable with certainty.”

The terms of the real estate sale contract in Tower v. Halderman, 162 Ariz. 243, 782 P.2d 719 (Ct. App. 1989 ), were definite and certain, in spite of defendant/appellant Halderman’s attempt at obfuscation. Halderman’s attorney sent two forms to Ticor, the escrow agent. One form was a mutual agreement to cancel escrow, never signed by Tower. The other form was a notice of election to cancel escrow at the end of 13 days, unless Tower remedied his breaches...