The form of a contract is the outward expression of the contract, the content of the agreement of the parties to the contract in Vietnam, including the synthesis of all ways, procedures and means to express and announce the exact will be established, is an expression of the existence of the contract. In some cases, the law requires the parties to comply with the form when entering into a contract such as making it in writing; The document must be notarized, authenticated, etc.
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Contracts that do not comply with the form can still be recognized (Artwork)
According to the provisions of law, civil contracts can be expressed through forms: verbally, in writing, or by specific acts. For types of contracts that are required by law to comply with certain forms, such provisions must be complied with.
For example, a land-use right transfer contract is required by law to be made in writing and notarized or authenticated. Violation of these formalities may result in the invalidation of the transactions that the parties have agreed to perform.
Based on a breach of form to declare a contract invalid is only for the sake of the parties to change the form of expression in accordance with the provisions of law and to minimize the Disputes that may arise in the future. However, for contracts in which the parties have fulfilled their obligations but do not satisfy the formality conditions, the invalidation of the transaction will lead to trouble for the parties in the contract, creating a certain gap between the agreement of the will to perform the actual transaction and the validity of the contract. Invisibility creates conditions for the bad guys to take advantage of that to have acts of infringing upon the legitimate rights and interests of the other party in the contract.
Therefore, Article 129 of the 2015 Civil Code of Vietnam has provisions in an open direction, not considering a formal violation as a factor making such transaction absolutely invalid:
“A civil transaction violating conditions for validity pertaining to form shall be invalid, except for any of the following cases:
1. If the form of a civil transaction, required to be established in writing, does not comply with regulations of law, but a party or the parties has/have fulfill at least two third of the obligations in the transaction, a court, at his/her/their request(s), shall issue a decision on recognition of the validity of such transaction.
2. If the form of a civil transaction, required to be established in writing, violates against regulations on notarizing or authorization, but a party or the parties has/have fulfilled at least two third of the obligations in the transaction, a court, at his/her/their request(s), shall issue a decision on recognition of the validity of such transaction. In this case, the parties need not perform the notarizing or authorization.”
An obligation is an act whereby one or more subjects (hereinafter referred to as the obligor) must deliver things, transfer rights, pay money or valuable papers, perform work or not perform certain work for the benefit of one or more other subjects (hereinafter referred to as the obligee). The subject matter of the obligation is the property, the work to be performed or not performed, and the subject to be determined. Therefore, according to Article 129 of the 2015 Civil Code of Vietnam, the performance of at least two-thirds of obligations in a transaction can be understood as:
- One party or parties to the contract has transferred at least two-thirds of the object, if it is an object of the same type, the obligor must perform at least two-thirds of the quantity compared to the quantity originally agreed by the parties. agreement in the contract.
- One party or parties to the contract has paid at least two-thirds of money or valuable papers compared to the total amount and total documents specified in the contract.
- One party or parties to the contract has transferred at least two-thirds of the rights in the contract.
- One party or parties to the contract has performed or failed to perform at least two-thirds of the agreed work.
When "two-thirds of the obligations" have been performed as analyzed above, a party or parties to the contract has the right to go through the court to request the recognition of the validity of that transaction. After fully considering the conditions of the contract and the performance of obligations as mentioned above, the Court will issue a decision to recognize the validity of the Contract.
Bao Ngoc
