Type II Agreement Equals Reiance Damages (The Way I Read it) !
A Type II agreement “does not guarantee” the parties will reach agreement on a final
contract because of “good faith differences in the negotiation of the open issues” may preclude
final agreement. Id. A Type II agreement “does, however, bar a party from renouncing the deal,
abandoning the negotiations, or insisting on conditions that do not conform to the preliminary
We (DSC) now hold hold that where the parties have a Type II preliminary agreement to negotiate in
good faith, and the trial judge makes a factual finding, supported by the record, that
the parties would have reached an agreement but for the defendant’s bad faith
negotiations, the plaintiff is entitled to recover contract expectation damages.99 (footnote99)"
"99 An expectation damages award presupposes that the plaintiff can prove damages with
reasonable certainty. Callahan v. Rafail, 2001 WL 283012, at *1 (Del. Super. Mar. 16, 2001)
(citation omitted) (“It is well-settled law that ‘a recovery for lost profits will be allowed only if
their loss is capable of being proved, with a reasonable degree of certainty. No recovery can be
had for loss of profits which are determined to be uncertain, contingent, conjectural, or