Negotiated formality: analysis of the “written modification only” agreement

Abstract

The requirement that modifications to a contract must occur in writing is a common provision in instruments adopted in various contractual relationships. However, it is doubtful what legal qualification this type of agreement holds, and, more importantly, what consequences arise from its non-compliance. This paper holds that agreements requiring written form for contractual amendments fall within the broader category of conventional agreements, the regulation of which dates back to Roman law and has been categorized in European common law, extending to contemporary legal systems of the Romano-Germanic tradition, each attributing different effects to such agreements. It is contended that, in light of the current legal framework in Brazil, conventional agreements, and consequently, agreements requiring written form for contractual amendments, establish formal validity requirements, the non-compliance of which results in the nullity of the agreement in which the conventional formality was not observed.