Document-Id: 923000, Please cite as: "http://www.trans-lex.org/923000"

Principle

No. IV.4.1 - Freedom of Form

(a) Contractual declarations are valid even when they are not made in or evidenced in writing unless mandatory rules of any applicable domestic law provide otherwise. 

(b) Parties to international business contracts may not insist on undue formalism without any good reason.

CommentaryReferencesContract ClausesDiscussion

Commentary

1 The need for speed and efficiency and the presumed professional competence of businessmen result in the fact that international business contracts or unilateral contractual declarations by the parties to such contracts prior to the conclusion of the contract or during the lifetime of the contract are not subject to any requirement as to form.

2 The parties are of course free to agree on a specific form requirement for declarations to be made by them during the contract or for its termination. In the latter case, the need for legal certainty as to the question whether the contract was in fact terminated may dictate such a contractual form requirement.

Please cite as: "Commentary to Trans-Lex Principle , http://www.trans-lex.org/923000"
 

References

 

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Arbitral AwardsCourt DecisionsDoctrineInternational LegislationModel LawsNational LegislationPrinciples / Restatements

Arbitral Awards

African Holding Company of America, Inc. Et Société Africaine de Construction au Congo S.A.R.L. v. La République Démocratique du Congo, CIRDI No. ARB/05/21ICC Award No. 10329, YCA 2004, at 108 et seq. 

Court Decisions

Nuclear Tests (Australia v. France), Judgment, I.C.J. Reports 1974, p. 253 et seq. 

Doctrine

Bianca, C. Massimo/ Bonell, Michael Joachim, Commentary On The International Sales Law, Art. 7, Milan 1987Dölle, Hans (ed.), Kommentar zum Einheitlichen Kaufrecht, Comment on Art. 10 by Ulrich Huber and on Art. 17 by Eduard Wahl, Munich 1976.Domingo, Ortega, Rodriguez-Antolin, Zambrana, Principios de Derecho Global, Navarra, 2006Ferrari, Franco, Das Verhältnis zwischen den Unidroit-Grundsätzen und den allgemeinen Grundsätzen internationaler Einheitsprivatrechtskonventionen, JZ 1998, at 9 et seq.Ferrari, Franco, The CISG's Interpretative Goals, Its Interpretative Method and Its General Principles in Case Law (Part II), IHR 5/2013, at 181 et seq.Goldman, Berthold, Nouvelles Réflexions sur la Lex Mercatoria, in: Festschrift Pierre Lalive, Basel, Frankfurt a.M. 1993, at 241 et seq.Herber, Rolf/ Czerwenka, Beate, Internationales Kaufrecht, Munich 1991Jenks, Edward et al., A Digest of English Civil Law, London, Sydney, Calcutta, Winnipeg, Wellington 1921.Lando, Ole, CISG and Its Followers: A Proposal to Adopt Some International Principles of Contract Law, in: American Journal of Comparative Law 53, Berkley 2005.Magnus, Ulrich, Die allgemeinen Grundsätze im UN-Kaufrecht, 59 RabelsZ 1995, at 469 et seq.Majeed, Nudrat, Good Faith and Due Process: Lessons from the Shari'ah, 1 Arb. Intl'l 2004, at 97 et seq.Marrella, Fabrizio, La nuova lex mercatoria, Principi Unidroit ed usi di contratti des comercio internazionale, CEDAM, Tratto di dritto commerciale e di dritto publico dell‘economia, Volume 30, Padova 2003Schlechtriem, Peter (ed.), English Commentary on the UN Convention on the International Sale of Goods (CISG), Comment on Art. 7 by Rolf Herber, Oxford 1998 

International Legislation

United Nations Convention on Contracts for the International Sale of Goods (CISG) 

Model Laws

OHADA Uniform Act Relating to General Commercial Law (Translation)Uniform Law on the Formation of Contracts for the International Sale of GoodsUniform Law on the International Sale of Goods 

National Legislation

Contract Law of the People's Republic of ChinaCzechoslovak International Trade CodeEthiopian Civil CodeRussian Civil CodeUK Sale Of Goods Act 1979, Chapter 54 

Principles / Restatements

Principles of European Contract Law - PECLPrinciples of the Existing EC Contract Law (Acquis Principles)UNIDROIT Principles of International Commercial Contracts 

Contract Clauses

 

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1. Contractual Form RequirementsSales & Purchase ContractServices ContractLoan ContractAsset Management AgreementPledge AgreementJoint Venture
1. Contractual Form RequirementsSales & Purchase ContractPlacing of Order
Purchase orders which are made orally need to be confirmed in writing in order to become effective (...). Order confirmations have to be made in writing and have to contain the signature of an authorized person and the company stamp (...)
Electronic Contracting
The parties agree that if this Contract is transmitted electronically neither party shall contest the validity of this Contract, or any acknowledgement of the Contract, on the basis that this Contract or acknowledgement contains an electronic signature - (International Contracting: Law and Practice - Larry A. DiMatteo - §6.05 A - S. 205).
Initiation; Confirmation: Termination: Maximum Transaction Amounts
An agreement to enter into a Transaction may be entered into orally or in writing at the initiation of either Buyer or Seller. In any event, Buyer shall confirm the terms of each Transaction by issuing a written confirmation to Seller promptly after the parties enter into such Transaction in the form of Exhibit I attached hereto (a "Confirmation"). Such Confirmation shall describe the Purchased Mortgage Loans, identify Buyer and Seller and set forth (i) the Purchase Date, (ii) the Purchase Price, (iii) the Repurchase Date, unless the Transaction is to be terminable on demand, (iv) the Pricing Rate applicable to the Transaction, (v) the applicable Collateral Amount Percentages and (vi) additional terms or conditions not inconsistent with this Agreement. After receipt of the Confirmation, Seller shall, upon its approval thereof and subject to the provisions of subsection (c) below, sign the Confirmation and promptly return it to Buyer (...)
1998
Notices and Other Communications
Unless another address is specified in writing by the respective party to whom any written notice or other communication is to be given hereunder, all such notices or communications shall be in writing or confirmed in writing and delivered at the respective addresses set forth in the Confirmation.
1998
Governing Documents
(...) No additional or different terms stated by Seller in an acceptance or written confirmation of the Agreement shall be effective unless such terms shall be specifically accepted in writing by Purchaser. No modification of the Agreement shall be effective unless the same shall be reduced to writing and signed by the duly authorized agents of the parties. There are no representations, understandings, or agreements, either oral or written, which are not included as part of the Agreement.
2003
Modifications; Amendments
No modification, amendment, or waiver of any provision of this Agreement shall be effective unless the same shall be in writing and signed by the party affected.
2004
Validity of Contract and Other Matters
The Contract shall come into effect after signing by Party A and Party B and being notarized.
2010
Amendments
Any amendments to this Agreement (including amendments to this clause) shall be valid only if made in writing, unless applicable mandatory law requires otherwise.
2010
Notices
All notices, amendments, waivers, consents and other communications provided to any party hereto under this Agreement shall be in writing and addressed, delivered or transmitted to such party at its address or facsimile number set forth below its signature hereto or at such other address or facsimile number as may be designated by such party in a written notice to the other parties. Any notice, if mailed and properly addressed with postage prepaid or if properly addressed and sent by pre-paid courier service, shall be deemed given when received; any notice, if transmitted by facsimile, shall be deemed given when transmitted upon receipt of electronic confirmation of transmission.
2010

All notices required or permitted hereunder shall be in writing and shall be deemed effectively given: (a) upon personal delivery to the Party to be notified, (b) when sent by confirmed facsimile if sent during normal business hours of the recipient, if not, then on the next business day, or (c) upon personal delivery if deposited with a recognized courier with written verification of receipt. All communications shall be sent as follows (...)
2011
 Services ContractConsulting Agreement (Notice)
Any notice required or permitted to be given under this Agreement to either party shall be in writing and sent by registered or certified mail, postage prepaid, return receipt requested, or by recognized overnight delivery service, to the address of such party set forth below, or to such other address as either party may hereafter designate by a notice given to the other party in the manner provided in this Section. If to the Company: {X}. If to the Consultant: {X} - (International Contracting: Law and Practice - Larry A. DiMatteo - §8.06 - S. 286).
Amendments
Any amendment to this Agreement must be in writing signed by duly authorized representatives of each of the Parties hereto and stating the intent of the Parties to amend this Agreement.
2005
Amendments, Etc.
No amendment or waiver of any provision of this Agreement, and no consent to any departure by the Pledgor from the terms hereof, shall in any event be effective, unless the same shall be in writing and signed by each of the Collateral Agent, the Securities Intermediary and the Pledgor, and then such waiver or consent shall be effective only in the specific instance and for the specific purpose for which given (...)
2005

All notices, requests, demands, consents, agreements and other communications required or permitted to be given under this Agreement shall be in writing and shall be mailed to the Party to whom notice is to be given, by facsimile, and confirmed by first class mail, postage prepaid, and properly addressed as follow (...)
2006
Notice
Except otherwise stipulated in this agreement, any party, when sending a notice under this agreement or notices related to this agreement, should be in writing. In the case of delivery by a designated person, or faxing, or using a publicly recognized express mail service to send to the addresses or fax numbers listed at the beginning of this agreement, or sending to another address or fax number the recipient has already notified in advance, it is considered to have been delivered.
2006
No Amendments
This Agreement shall only be modified, amended or supplemented with the express written consent of each of the Borrower, the Equity Contributor, the Collateral Agent and the Loan Servicer.
2009
Notices
All notices, amendments, waivers, consents and other communications provided to any party hereto under this Agreement shall be in writing and addressed, delivered or transmitted to such party at its address or facsimile number set forth on the signature pages hereof or at such other address or facsimile number as may be designated by such party in a notice to the other parties. Any notice, if mailed by certified or registered mail and properly addressed with postage prepaid or if properly addressed and sent by pre-paid courier service, shall be deemed given when received; any notice, if transmitted by facsimile, shall be deemed given when transmitted upon receipt of electronic confirmation of such, and shall be addressed at the address specified for such party on the signature pages hereto.
2010
 Loan ContractWaiver and Amendment
This Bridge Note may not be amended or modified, nor may any of its terms be waived, except by written instruments signed by Company and Investor. Each waiver or consent under any provision hereof shall be effective only in the specific instance and purpose for which given.
2002
Notices; Electronic Communications
Except in the case of notices and other communications expressly permitted to be given by telephone, notices and other communications provided for herein shall be in writing and shall be delivered by hand or overnight courier service, mailed by certified or registered mail or sent by fax or e-mail shall be delivered, and all notices and other communications expressly permitted hereunder to be given by telephone shall be made, to the applicable address, fax number, e-mail address or telephone number specified for the applicable Person in Schedule X (...)
2008
Notices
All notices, consents, requests, approvals, demands, or other communication by any party to this Agreement or any other Loan Document must be in writing and shall be deemed to have been validly served, given, or delivered: (a) upon the earlier of actual receipt and three (3) Business Days after deposit in the U.S. mail, first class, registered or certified mail return receipt requested, with proper postage prepaid; (b) upon transmission, when sent by electronic mail or facsimile transmission; (c) one (1) Business Day after deposit with a reputable overnight courier with all charges prepaid; or (d) when delivered, if hand-delivered by messenger, all of which shall be addressed to the party to be notified and sent to the address, facsimile number, or email address indicated below. Bank or Borrower may change its mailing or electronic mail address or facsimile number by giving the other party written notice thereof in accordance with the terms of this Section X.
2011
Amendments and Waivers
Any provision of this Agreement or the Notes may be amended or waived if, and only if, such amendment or waiver is in writing and is signed by the Parent Guarantor, the Borrower and the Required Lenders (and, if the rights or duties of the Administrative Agent are affected thereby, by the Administrative Agent) (...)
2011
Notices
Any notice required to be given under this Agreement shall be given in writing, and shall be effective when actually delivered, when actually received by telefacsimile (unless otherwise required by law), when deposited with a nationally recognized overnight courier, or, if mailed, when deposited in the United States mail, as first class, certified or registered mail postage prepaid, directed to the addresses shown near the beginning of this Agreement. Any party may change its address for notices under this Agreement by giving written notice to the other parties, specifying that the purpose of the notice is to change the party's address (...)
2012
 Asset Management AgreementNotice
Any written notice given under this Agreement by Manager or Consultant shall be given by prepaid Certified Mail, Return Receipt Requested, or by any nationally recognized overnight courier or by personal delivery or facsimile transmission, sent to the party to whom it is given at the address set out in below, or such other address as either party may direct by notice given in accordance with the provisions of this Section, to the attention of the following persons (or any subsequently duly designated substitutes) (...)
2003
 Pledge AgreementMiscellaneous
Any amendments, modifications or supplements to this Agreement shall be in writing and come into effect upon being executed and sealed by the Parties hereto.
2010
 Joint VentureAmendment, Termination and Dissolution of Joint Venture
The amendment of the contract or its appendices shall come into force only after a written agreement has been signed by both Parties and approved by the original examination and approval authority.
2006
Validity of the Contract
Any notices, if sent by fax or email and relating to the rights and obligations of the two Parties, should be notified by written letter later.
2006
Effectiveness of this Contract and Miscellaneous
All notices in connection with any Party's rights and obligations sent by either Party to another Party shall be in writing and shall only be deemed to have been officially received when delivered at the legal address of the Parties as listed in this Contract. Either Party may change its address by noticing the other Parties in writing.
2006
 

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