Pisani oblik ugovora i drugih pravnih poslova

Abstract

The notion of the written form of contracts and other legal transactions is analyzed in this paper. Historical development of formal legal transactions as well as the comparative law dimension of the form of contracts and other legal transactions are briefly addressed. The possibilities to acknowledge the legal effects of the written form in the case of electronic declarations of will are also analyzed. A particular emphasis is placed on different possibilities to interpret the relevant provisions of the Civil Obligations Act regarding the fulfillment of requirements for the written form if a contract is concluded electronically. The provisions of the German BGB are also discussed because of the fact that German law is to a larger extent adapted to the electronic declaration of will (declaration of will in electronic form and declaration of will in text form). A part of the paper relates to situations in which the parties to a contract agree that they shall conduct their business exclusively in written form. Although the provisions on the written form are of a mandatory nature, considering that they regulate conditions for the validity of contract, when the parties to a contract agree that a certain contract must be in writing, they actually exploit the freedom of contract principle. This fact should be borne in mind when parties agree that any modifications to or rescission of a contract must be in writing. If this is the case, the will of the parties should be taken into the account, because it is in accordance with the pacta sunt servanda principle, and there are no mandatory provisions that would nullify such an agreement. Naturally, the validity of such agreements can be challenged if they are contrary to the good faith principle or the prohibition of the abuse of right principle.