Formalism (right)

The principle of the formalism in Contract law is a principle resulting from the Roman law in virtue of which the Contrat must be formed according to a particular form. The formalism is opposed to the Consensualisme.

One attends a revival of the formalism because of major disadvantage of the consensualism which is the assent given to light without reflection nor retreat and being able to leave a place to uncertainty on the real contents of the contract.

Direct formalism

It is about the assumption where the form of the contract is required as condition of validity of this one. It is the case mainly solemn contracts.

Since the law of June 21st, 2004, the writing required for the formation of a contract can be done in electronic form, provided this writing presents guarantees of integrity (Article of the Civil code). However the electronic form is not admissible for the informal agreements relating to the right of the family and the succession, like for the informal agreements relative to guarantees or real, of civil or commercial nature, except if they passed through a person for the needs for her profession (Article of the Civil code). The electronic writing thus has even value of proof that the writing paper.

Indirect formalism

It is about the assumption where the form of the contract is not required for the validity of this one, but for its effectiveness, in particular as regards proof. One then speaks about probatory formalism .

The article of the Civil code definite the mode of the proof of the contract. In the absence of contrary provisions, the contract must be proven in writing. It is interdict to prove the contract by testimony or Présomption. Temperaments with these provisions are envisaged by the law:

  • the proof is free for the contracts of less 1500€.
  • the proof is free when it is about a business transaction between commercial.
  • the proof is free when there is a moral or material impossibility to prove it.
  • If there is a beginning of written proof, it is possible to supplement it by all means.
In addition to these legislative temperaments, there exists an exceptional temperament in virtue of which the parts can envisage by a Clause which they will derogate from the system of proof.

The indirect formalism is also a form required so that the contract can be opposable with the thirds.

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