What is a Memorandum of Understanding?

A Memorandum of Understanding, or MOU, is an agreement that serves as a starting point for negotiations and collaboration, allowing the parties involved to establish a common understanding of their objectives and responsibilities.  It is also often referred to as a Memorandum of Agreement, (MOA). The legal enforceability of a Memorandum of Understanding depends on the intention of the parties involved. While an MOU is not typically intended to create a legally binding contract, it can still be considered legally binding if the parties explicitly state their intention to be legally bound by its terms. 

To ensure clarity, it's important to include a clause in the MOU that clearly outlines whether the parties intend to be legally bound or whether the MOU is merely a statement of understanding and cooperation. This is one of the most fundamental aspects of the memorandum, so it must never be overlooked. Its common non-binding nature could be a drawback for parties who have already cemented the details of the transaction and are ready to legally commit. MOUs are commonly used in various scenarios, such as business partnerships, joint ventures, research collaborations and even in government and international agreements.

Unlike a long-term formal contract, the duration of a Memorandum of Understanding can vary and is determined by the parties involved. The parties have the flexibility to agree on timelines and specific periods, whether it's six months, a year, or even an indefinite timeframe.

However, it's important to note that an MOU is not typically suited as a long-term commitment in the way a formal contract is. Instead, it serves better as a preliminary document that outlines the framework for future negotiations and collaboration.

 Amongst a myriad of other advantages, the benefits of an MOU are that

a)     There are many benefits to formalizing your agreement with the other party through an MOU.

b)    It ensures that all parties are in agreement on their material duties, roles and obligations, thereby decreasing misunderstandings and future conflicts.

c)     It outlines how decisions by the parties will be made during implementation.

d)    It is a representation of the relationship between the parties.

e)     Can help keep the parties on track and focused on the original objectives/activities.

f)      Provides an easy framework to allow additional parties to join and expand the partnership or the contractual arrangement.

MOUs can be very short and general in scope or longer and more detailed. In some cases, a more detailed MOU can help provide a better roadmap for the parties. In other cases, that kind of detail may not be known at the time the parties seek to formalize their relationship. Therefore, it is better to limit the MOU to the essentials of the relationship so that the scope and context of the relationship is clearly defined.

When drafting or entering into an MOU, it's crucial to consult with a legal professional who can guide you through the process and ensure that your rights and interests are protected.