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 Federal courts interpreting New York law recognize two types of binding preliminary agreements, 'Type I' and 'Type II.' Parties create a Type II preliminary agreement when they 'agree on certain major terms, but leave other terms open for further negotiation.' '[T]he parties can bind themselves to a concededly incomplete agreement in the sense that they accept a mutual commitment to negotiate together in good faith in an effort to reach final agreement within the scope that has been settled in the preliminary agreement.' A Type II agreement 'does not commit the parties to their ultimate contractual objective but rather to the obligation to negotiate the open issues in good faith in an attempt to reach the alternate objective within the agreed framework.'


In Goodstein Construction Corp. v. City of New York, the New York Court of Appeals established that New York law limits a plaintiff to reliance damages for breach of an agreement to negotiate, without distinguishing between Type I and Type II agreements. In Fairbrook Leasing, Inc. v. Mesaba Aviation, Inc., the United States Court of Appeals for the Eighth Circuit, applying New York law, considered the remedies available for breach of a ...

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