Amending contractual obligations between professionals. Is an exchange of emails sufficient?

In commercial relationships between professionals, contracts are not always performed “by the book.” Deadlines are extended, requirements are adjusted, additional works arise. Most of the time, these changes are quickly agreed upon via email, in order not to block the project

Thus, the question frequently arises whether a contract may be validly amended through a simple exchange of electronic correspondence, where the contract provides that any amendment is made “with the written consent of the parties”.

The subject is of practical interest, especially in the context of the digitalization of contractual relationships and the performance of service contracts over the medium or long term.

1. The principle of the binding force of the contract

According to Article 1270 para. (1) of the Civil Code, a validly concluded contract has the force of law between the contracting parties. The direct consequence of this principle is set out in para. (2) of the same article: a contract may be amended or terminated only by the agreement of the parties or for reasons authorized by law.

Thus, the rule is clear: amending a contract requires the concordant expression of will of both parties.

2. The form of contract amendments: what the law requires and what the parties may agree

The Civil Code distinguishes between the form required by law and the form established by the parties:

• According to Article 1242 para. (2) of the Civil Code, if the parties have agreed that a contract be concluded in a certain form which is not required by law, the contract remains valid even if that form has not been complied with.
• Pursuant to Article 1243 of the Civil Code, in the absence of a contrary legal provision, any amendment to a contract is subject to the formal requirements imposed by law for its conclusion.

In the case of service contracts between professionals, the law does not require a written form ad validitatem. The written form is, as a rule, one of a probative nature, established by the parties for the purposes of clarity and legal certainty.

3. Is “written consent” equivalent to a signed addendum?

In practice, many contracts contain standard clauses such as: “any amendment shall be made with the written consent of the parties.” This raises the question of whether an exchange of emails clearly reflecting the will of both parties may be regarded as such written consent.

The answer is, in principle, affirmative, subject to certain important nuances:

• an email constitutes a document in electronic form;
• correspondence showing a request for an amendment and its acceptance by the other party reflects an explicit agreement of wills;
• the absence of a formal addendum does not affect the validity of the amendment, insofar as the law does not require a solemn form.

4. Amendment of the contract through the conduct of the parties

An additional argument, frequently encountered in case law, is the performance of the contract under the new conditions.

Thus, if:

• one of the parties requests an extension of the performance deadline or additional works;
• the other party accepts and continues performance;
• both parties comply with the new terms (for example, without invoking delay penalties),

it follows that the parties have tacitly, yet unequivocally, consented to the amendment of the contract.

The voluntary performance of the obligations as thus amended confirms the existence of the agreement and produces legal effects.

5. Practical conclusion

In relations between professionals:

• amending a contract does not necessarily require the conclusion of a handwritten-signed addendum;
• an exchange of emails may constitute the “written consent of the parties” if it clearly and unequivocally expresses their will;
• the subsequent conduct of the parties, consisting in the performance of the amended contract, reinforces the validity of the amendment.

However, for reasons of legal risk prevention, formalizing amendments through addenda remains advisable, especially in contracts involving high values or essential deadlines.

Daniela Clinciu