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Heads of terms agreement

Heads of terms are a document setting out the main terms of a commercial agreement reached between parties in a transaction. Heads of terms can also be known as a letters of intent or memoranda of understanding.

Following the parties initial negotiations, heads of terms are prepared to set out the agreed basic terms of a contract or commercial lease before the finer details are negotiated.

Although heads of terms are usually not legally binding, the document records the future intentions of parties wishing to take part in a transaction but does not enforce obligations on them.

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Heads of terms will usually cover these basic features and major points:

  • The price
  • The identities of the parties
  • The fundamental purpose of the contract
  • The terms of the contract/transaction
  • Confidentiality agreements
  • Any protection for the parties in the event of a failed transaction
  • Any unusual provisions which are key to whether a party would proceed with the transaction or not

In addition, heads of terms can also highlight any major issues or irreconcilable differences/misunderstandings between the parties. These issues can then be resolved at an early stage. It is far better to do this at the outset, rather than during the course of a transaction when fees and expenditure may have been incurred.

In addition to these benefits, these agreements may contain ‘lock out’ clauses which can be legally binding. These lock out clauses stop the parties concerned from negotiating with any other party or person for a fixed amount of time. This is to stop either party from feeling pressured into going ahead with a transaction for fear that the other party is negotiating with someone else regarding the transaction.

Our commercial property team has extensive experience of drafting and reviewing heads of terms, letters of intent and memorandum of understanding. We can negotiate and draft heads of terms agreements regarding any kind of commercial contract or business transaction. The legal ramifications of heads of terms documents can be difficult to understand, and as such if you are about to enter into a commercial property transaction and need the help of a dedicated and experienced law firm to ensure your best interests are protected, we are able to assist.

For more information on heads of terms, contact a member of our specialist team on 01616 966 229.

Alternatively please complete our online enquiry form and a member of the team will contact you.

Benefits and risks of using heads of terms

The first complexity that heads of terms may introduce relates to whether or not they are legally binding. In most cases it will not be the intention of the parties to create legally binding Heads of Terms – they are essentially simply the skeleton for the negotiations and the legally binding documents that will follow. It is key to avoid creating legally binding Heads of Terms, as in their raw form, these will not fully reflect what the parties to the transaction want. As a result, it’s important to include an express provision as to whether or not they are legally binding when drafting them.

Using the words ‘subject to contract’ can also create the presumption that the Heads of Terms are not to bind the parties, however, this can be undermined if the parties start performing the obligations outlined in the Heads of Terms before the legally binding documents are finalised. This is particularly the case with respect to a short-term lease (under three years), which does not require a deed and where there is a disposition of an interest in land.

With respect to the latter, the risk comes from the Law of Property (Miscellaneous Provisions) Act 1989, which may assume the terms are legally binding if they are in writing, signed by all parties, include the terms expressly agreed by the parties AND they include offer, acceptance, consideration and intention to create legal relations.

The other risk area to be aware of with Heads of Terms is that even if they are not legally binding in themselves they can be used as evidence of the parties’ intentions with respect to the relationship. This could provide the basis for a rectification claim, which has the effect of overriding - or ‘rectifying’ – a binding legal document. There are a number of circumstances in which rectification is available to the court, for example where it is clear that the legally binding agreement doesn’t reflect the deal that the parties to it were trying to document.

So, how do you successfully employ Heads of Terms? They should be used to identify those issues that will provide the structure for a transaction and to raise at the start those that could stop it going ahead. A balance needs to be struck on the detail – not too much to tie the parties’ hands and not too little to provide no guidance when it comes to document drafting, resulting in confusion and delays. While it is customary for Heads of Terms to be left to the parties and their surveyors, it is worth involving a commercial property solicitor from the start, as this way any legal issues can be identified and dealt with early on. Given the consequences for a contract if the Heads of Terms are not used correctly, it is worth the early effort.

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Frequently asked questions about head of terms agreements

What does heads of terms mean in business transactions?

Head of terms refers to a pre-sale agreement on some of the key issues in relation to a sale that the two involved parties agree to when they are unable to proceed with the transaction or sign a full contract at that point. This can be a complex area of law and expert advice should be sought.

What is a head of terms document?

A head of terms document is also sometimes called a ‘letter of intent’ and is the written agreement of the pre-sale terms that both parties are in accord with. It is essentially an agreement in principle in regard to major issues concerning the upcoming transaction, and the circumstances can dictate if it’s legally binding.

What are heads of terms in property transactions?

In commercial property transactions, the term “heads of terms” is generally used in lease transactions to refer to the basic terms agreed between the parties before a lease is drafted. The term “heads of terms” can also be used in a commercial property sale transaction and is also known as a memorandum of sale. It sets out the basic terms agreed between the seller and buyer in relation to the sale before the contract is drafted.

Heads of terms are usually not binding and are generally prepared by the landlord’s or seller’s agent.

Is a heads of terms agreement legally binding?

Heads of terms agreements in the UK are not usually legally binding, unless the document specifies that both parties have agreed to be legally bound by its terms. It is common in business transactions for certain terms such as confidentiality and exclusivity to be legally binding if they are included, but this is subject to the specific terms and the drafting. This can be a complex area and it’s important to take specialist advice before agreeing to such a clause in a head of terms agreement.

Are heads of terms legally enforceable?

A head of terms document is generally an agreement in principle, but there is usually no legal obligation for the two parties to complete the transaction on these previously specified terms. There may be a moral obligation to do so, but the head of terms cannot usually be legally enforced.

Should I use a heads of terms agreement?

A head of terms agreement can be useful if the proposed transaction is complex. Setting out proposed terms early in negotiations can help both parties to quickly see if the deal between them looks viable before committing more time and resource towards it if not. Seek legal advice if considering a heads of terms agreement. 

What should be included in heads of terms for a business transaction?

Heads of terms usually cover some basic information along with key points in relation to the proposed transaction. The price of the transaction along with the stated purpose of the contract and any terms that are specific to the transaction itself will usually be included, along with confidentiality clauses and any protection outlined if the deal fails to complete.

Do heads of terms need to be signed?

As a head of terms agreement is not usually designed to be legally binding there is not always a requirement for it to be signed. However more often than not the parties will sign the document to acknowledge agreement to it. The document may well outline other documents that need to be signed as part of the transaction. Always take legal advice before signing a head of terms agreement as this can be a complex area of law.

Head of terms that are “subject to contract”

By default, most head of terms agreements are considered ‘subject to contract’, which means that the terms included are not legally binding but are a statement of intent for both parties before they enter into the full contract, which will be legally enforceable if both parties proceed to sign it.

If the heads of terms include some obligations that are required to be carried out by either party before the full contract is signed, this can affect the legality of the head of terms document and potentially make some parts of it legally binding. It is therefore essential to take expert legal advice before agreeing on a head of terms document, as this can be a complex area of law.

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