This case recalls the need to exercise caution in the formulation not only of settlement offers, but also of tender negotiations, when the conduct of the parties does not make it possible to determine whether the parties have concluded a binding contract. If they wish in principle to make only one offer, the exact terms to be agreed later, they should make this clear by relying on “opposite to contract” correspondence, while the court will always consider the content of the correspondence and not the label. In a letter (“the Letter of Offer”), Sun`s lawyers presented Mr. Newbury`s lawyers with an offer to deal as follows: The English case of Malcolm Newbury v. Sun Microsystems Ltd,  EWHC 2180 (Q8) illustrates the importance of prudent formulation of transaction offers. Although this is not a construction case, it is naturally the same for construction cases. As a result, Mr. Newbury and Sun argued over whether a binding agreement had been reached on the terms set out in the letter of offer. The Tribunal found that the letter of acceptance had resulted in a binding agreement between the parties.
The terms of that agreement were that Sun would pay Mr. Newbury certain amounts for the full and final settlement of the receivable and counterclaim until a specified date and that the agreement be set out in a duly formulated agreement, that is, in an agreement reflecting the terms of the contract. The execution of this agreement, duly formulated, is not a precondition for the creation of a binding agreement, but is simply intended to maintain more formally the agreement concluded. . . .