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This post uses hypothetical scenarios for illustrative purposes only. It does not describe any actual client, transaction, or representation, and is not legal advice.

Here is how this usually shows up: a founder gets a two-page letter of intent from a buyer. Headline number in bold, a structure sketch, a sixty-day exclusivity clause, and a sentence that says the parties will negotiate a definitive agreement in good faith. The founder signs it, tells the family the company is sold, and starts mentally spending the escrow release. Eight weeks later the buyer’s quality-of-earnings report comes back, the number drops fifteen percent, and the founder asks the question every Florida deal lawyer has answered a hundred times: can they do that? We signed something. The answer lives in one of the most consistent lines of doctrine Florida has: the agreement to agree.

Florida enforces deals, not intentions to deal

Under Florida law, a letter of intent is enforceable as a contract only if it fixes the essential terms of the deal and shows the parties intended to be bound by the letter itself. A document that merely records where negotiations stand — or promises to keep negotiating — is an unenforceable agreement to agree. The Third District’s decision in Midtown Realty, Inc. v. Hussain, 712 So. 2d 1249 (Fla. 3d DCA 1998), is the workhorse citation: a signed letter of intent for the sale of a gas station, followed by continued negotiation of the real purchase agreement, was held to be a preliminary statement contemplating a future contract, not the contract itself. The parties’ own conduct — trading drafts after the LOI was signed — proved the LOI was never meant to be the deal.

The doctrine is not a relic. In December 2024, the Eleventh Circuit, applying Florida law in , affirmed the dismissal of a suit built on an LOI in which the parties committed only to “attempt to negotiate” a definitive purchase contract in good faith for fifteen days. When one side withdrew, the other sued on the LOI — and lost at the motion-to-dismiss stage, because a promise to try to reach agreement on missing essential terms is exactly the thing Florida courts refuse to enforce. Note what that means in practical terms: even an express good-faith-negotiation covenant, with a defined negotiation window, was not enough to create liability for walking away.

Delaware plays this differently, and your choice-of-law clause knows it

The Florida rule is not the national rule. Delaware’s Supreme Court has held — in the SIGA Technologies v. PharmAthene litigation — that a party who breaches an express obligation to negotiate in good faith toward a deal whose terms were substantially set can be liable for expectation damages, meaning the value of the deal that would have been struck. Same fact pattern, radically different exposure. A buyer who retrades under a Delaware-governed LOI with a good-faith covenant carries real litigation risk; the same buyer under a Florida-governed LOI mostly carries reputational risk. Neither rule is “better” for you in the abstract — it depends on which side of the retrade you expect to be on. But it means the governing-law clause in a two-page LOI, the provision everyone treats as boilerplate, is quietly selecting between two different legal regimes for the entire pre-signing period.

The parts that do bind are the parts that hurt

Now the twist that founders miss. Well-drafted LOIs are hybrids: expressly non-binding on price and structure, expressly binding on a short list of covenants. Florida courts respect that architecture — the unenforceability doctrine applies to the open deal terms, not to a self-contained covenant the parties designated as binding. So look at what the binding list actually contains. Exclusivity: the founder agrees not to shop the company or talk to other buyers for sixty or ninety days — a real, enforceable restraint, and the subject of the same leverage dynamics I covered in the context of no-shop windows. Confidentiality: binding. Expense allocation, sometimes a break-up construct: binding. In other words, the standard LOI binds the seller’s most valuable asset — optionality — while binding the buyer to almost nothing, since the buyer’s core promise, the price, sits safely on the non-binding side of the line. The founder who says “it’s non-binding, so signing costs nothing” has it backwards. The non-binding parts are the buyer’s; the binding parts are yours.

Negotiate the LOI like it’s the deal, because economically it is

There is a school of thought that says don’t over-lawyer the LOI; save the fights for the purchase agreement. Florida’s doctrine explains why that school is half right and half expensive. It is right that litigating deal terms into an LOI wastes leverage — they will not be enforced anyway. It is expensive because a founder’s negotiating power peaks the moment before exclusivity signs and declines every day after, which is the pattern the market data on escrows and holdbacks keeps confirming. The practical synthesis looks like this. First, put the economic terms you cannot live without into the LOI anyway — not because a court will enforce them, but because a buyer who retrades a written number owns the retrade in the negotiation that follows. Second, keep exclusivity short, with an automatic expiration and, ideally, conditions on the buyer’s continued diligence pace. Third, be explicit about which provisions bind and which do not — Florida courts will read your labels, and ambiguity helps whichever side later prefers chaos. Fourth, remember that walking away from a Florida LOI is usually lawful, but lying within one is not; fraud claims travel on a separate track, with their own well-litigated limits I’ve written about in connection with non-reliance clauses and the economic loss rule. And before any of it, make sure the structure sketch in the LOI — asset deal or stock deal — is the one you actually want, because that choice is the hardest thing to renegotiate later.

The agreement-to-agree doctrine, in the end, is neither pro-buyer nor pro-seller. It is pro-definitive-agreement. Florida’s message to both sides is the same: the courthouse door opens when the real contract signs, so get to the real contract with your leverage intact.

If you are about to sign a letter of intent for the sale of your business, feel free to reach out to my firm manager, Magda, at Magda@montague.law, or fill out our contact form. Mention you read this post.