Factors to Take into Account When Writing a Memorandum of Understanding (MoU)

No matter the kind of business partnership or transaction being considered, it is desirable for the contracting parties to reach an early written agreement on the broad principles that will serve as the framework for the final form of agreement(s). It helps the parties resolve crucial problems and guides the attorneys in constructing the final form of agreements. Letters of intent, heads of terms, or memoranda of understanding (collectively referred to as “MOUs”) are common names for these kinds of preliminary papers that contain the essential terms between parties awaiting discussion and agreement on the final contract (s).

What is a Memorandum of Understanding (MoU)?

A memorandum of understanding, often known as an MOU, is a non-binding document outlining each party’s intentions to perform specific actions, complete a commercial transaction, or establish a new partnership. Another name for this kind of contract is a letter of intent (LOI) or memorandum of agreement (MOA). 

Before signing a comprehensive agreement, the parties will first sign a Memorandum of Understanding (MoU) or Letter of Intent (LoI). It is often filed to formalize the parties’ initial understanding and guide any forthcoming negotiations or collaborative efforts. 

Purpose and significance of MoU in the UAE

1. The MOU is not intended to serve as a binding contract between the parties or include all the essential information relating to the transaction. Instead, it provides the parties concerned certainty that there is a sincere desire to work together to get the issue to a point where the parties may agree upon and sign a formal final form agreement (or agreements) on both sides of the transaction.
2. Additionally, the negotiation of an MOU may assist in identifying, defining, and resolving any initial areas of conflict between the parties. It will eventually promote efficient and economically advantageous discussions of the final agreement form (s). 
3. Simply put, any intended cooperation concerning the envisaged transaction will probably not happen if the parties cannot agree on the MOU’s broad parameters. 

How does MoU work for the parties?

The parties to a memorandum of understanding must agree that it is acceptable to all parties before the document is created. The key positions each side takes should be clear to all concerned parties. The parties may produce a comprehensive and valuable MOU document in this manner.

A memorandum of Understanding is usually created when both (or all) parties have prepared their own MOU papers that include the following topics:

• Desirable Goal
• Intended results
• Any outcomes that are necessary to them
• What advantages do they see for the other partners in the agreement of understanding

Before beginning discussions, a memorandum of the agreement outlines each party’s basic stance.

Important distinctions between a contract and a Memorandum of Understanding (MoU)

A memorandum of understanding (MOU) is a written agreement between two parties to work together to accomplish a goal. It indicates that the two parties have a written understanding but is not legally binding. On the other hand, a contract is a mutual arrangement in which two or more parties agree to a binding deal. It is legally binding and tries to disperse risk if one party does not fulfill its responsibilities following the contract’s provisions.

Benefits of MoU

The following are some benefits of adopting an MOU instead of a conventional contract or agreement:

1. When creating a contract, they ensure that all sides are on the same page, mainly when the transaction or arrangement is complicated;
2. During the first discussions, they aid in aligning the parties’ values and lay out expectations to prevent dispute in the future;
3. They facilitate the development of an honest and transparent commercial connection that will ultimately lead to a win-win situation without subjecting either party to duties under the law;
4. The parties can leave if talks do not succeed without risking legal repercussions or calling for a formal termination.

Which essential factors need to be taken into account before signing an MOU?

Consider an MOU as the base upon which the parties will build the final form of agreement (s). The contents of an MOU will vary depending on its subject matter, but in an ideal world, the major substantive elements of the agreement should be outlined and, in principle, agreed upon. The following should be carefully considered even if an MOU is not the final contract between two parties.

1. Conditions of payment:
2. Duration,
3. Risk distribution,
4. Terms of delivery,
5. Laws and regulations
6. Forum for resolving disputes, etc.
7. An MOU may also include additional provisions that have not yet been agreed upon, which may assist frame and directing future discussions between the parties after the MOU has been signed.

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