Distinguishing between contracts and civil contracts with foreign elements | iGuide

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Distinguishing between contracts and civil contracts with foreign elements

Contracts and civil contracts with foreign elements are both important legal agreements, but they have fundamental differences in terms of scope of application and legal regulations. This article will help you clearly distinguish between these two types of contracts, from their constituent elements, performance conditions to applicable legal regulations. Thereby, helping you to apply the law correctly and protect your rights in international transactions.

Article 385 of the 2015 Civil Code No. 91/2015/QH13 (“Civil Code 2015“) A contract is an agreement between parties to establish, change or terminate civil rights and obligations.

Some common types of contracts in Vietnam are stipulated in the 2015 Civil Code, including property sale contracts, cooperation contracts, transportation contracts, and authorization contracts.

Currently, the definition of a civil contract with foreign elements is not specified in the 2015 Civil Code. However, according to the definition of a contract, it can be seen that a civil contract with foreign elements is an agreement to exercise the rights and obligations of the parties, agreed upon by the parties to meet the interests of each party, constituting a civil relationship with foreign elements.

In Clause 7, Article 683 of the 2015 Civil Code, the form of a civil contract with foreign elements is determined according to the law applicable to that contract. In case the form of the contract is not in accordance with the law of the country where the contract is concluded or Vietnamese law, that form is recognized in Vietnam.

In Clause 2, Article 27 of the Commercial Law 2005 No. 36/2005/QH11 (“Commercial Law 2005”), international goods sale contracts must be performed on the basis of a written contract or in another form of equivalent legal value, so when signing contracts, it is also necessary to comply with the formal regulations of the 2015 Civil Code, the 2005 Commercial Law and relevant legal documents.

Thus, depending on the agreement of the parties in a civil contract with foreign elements to choose the applicable law, each contract will have its own form. The form of a civil contract with foreign elements can be concluded orally, in writing or by conduct. Even according to Article 11 of the 1980 Vienna Convention (CISG), an international contract for the sale of goods does not need to be signed or confirmed in writing or comply with any other requirements regarding the form of the contract. The contract can be proven by any means, including witness testimony.