The CISG and the Contractual Freedom of Form and Evidence: A Latin-American Perspective

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Introdução: One of the most traditional principles of continental contract law is the freedom of form.Through it Civil Law consecrates the notion that formal or solemn contracts would beexceptional1 just as any prohibition to the adoption of a certain contractual form wouldbe exceptional.2The Latin American doctrine, in general, faces this issue when addressing the classificationof contracts (formal versus non-formal agreements).This approach illustrates a first necessary distinction: the principle of contractualfreedom of form, as a rule, should be associated with private autonomy (contractual liberty)as an expression of the negotiating liberty (freedom to contract what and with whom onewishes). On the other hand, the consensualism principle is another facet of the normativepower of this same freedom: consent is sufficient to bind the party.

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