Formal Contracts in Central and Eastern European Countries: Agreed Form of Contracts

Abstract

A requirement to conclude a contract in a certain form may be requested by the legislator (statutory form) or the contracting parties themselves (agreed form). This study examines the agreed form of contracts and the legal consequences arising from non-compliance with that form. First, the study focuses on the form in general, the principle of consensualism as an achievement of modern law, and the types of the form based on various criteria (shape, legal effect, and origin). This is followed by analyses of the agreed form and its functions, variations, advantages, and limitations. The central analyses focus on the approaches of legislators in CEE countries towards the agreed form and legal consequences of non-compliance. Despite the numerous economic, political, and social changes these countries have undergone, the principle of consensualism and the freedom to choose the form of contracts have persisted. Hence, the applicable laws of Poland, the Czech Republic, Slovakia, Hungary, Bulgaria, Romania, Slovenia, Croatia, Serbia, Bosnia and Herzegovina, Montenegro, North Macedonia, and Albania are analysed. The author endeavours to answer what legal effect the agreement has on the form if the contracting parties did not precise whether their form will be the constitutive element of the contract or just the simple proof of its existence. The legal consequences of failing to comply with the agreed form differ across countries: in some, it leads to the nullity of the contract; in others, it makes the contract unenforceable.