If the applicant is unable to prove the damage with sufficient certainty, the court resorts to trust, restitution or even nominal damages, in addition to the condition of the case, depending on whether the applicant is able to meet the appropriate security requirements. To Brown v. Cara, for example, the Memorandum of Understanding, in which the parties expressly agreed to “cooperate” in executing a contract for the development of a real estate joint venture, set very few substantive conditions.  Although the plaintiff was able to demonstrate causation – that the defendant`s bad faith behaviour prevented him from reaching an agreement – he was unable to determine the terms of the agreement and that he had lost his hopes.  Of course, a court might be able to use legal defaults or standard terms in the industry. On the contrary, however, the court may apply the appropriate security condition and enforce the appeal for compensation instead of the waiting.  On the other hand, if the parties intended to bind themselves to the transaction (Type I), they would probably have accepted more conditions (than under an interim agreement) and would have more clearly indicated their preference for legal or industrial failures. In such a Type I agreement, it is more likely that the court established with reasonable certainty that the waiting damages were found. The applicants opened proceedings to ask the defendant to sell the transaction to the applicants under the conditions set out in the interim agreement. Contracting in commercial transactions can be an expensive and complex process, with several phases and actors, as well as considerable investments in know-how and information.
In the case of complex purchases, leases, business purchases or leasing transactions, to name but a few types, it is virtually impossible for the parties to enter into a fully agreed and binding contract in a single meeting or over a very short period of time. Negotiations on these transactions are generally sequenticized, with a set of problems at each stage and by many agents with different skills. As part of their negotiations, parties often enter into upstream agreements, often referred to as declarations of intent, agreements in principle, letters of commitment, declarations of intent or appointment sheets.