Nejvyšší soud k dohodě stran o písemné formě smlouvy a její změně

In its recent ruling dated August 27, 2025, file number 23 Cdo 2565/2024, the Supreme Court addressed a case in which the plaintiff, as the client, withdrew from a contract for work concluded with the defendant as the contractor. The reason for the withdrawal was the alleged delay by the defendant in completing the work. The plaintiff subsequently sought the return of the already paid portion of the purchase price and a contractual penalty for breach of contractual obligations.

The contract for work included a provision stating that the contractor was to complete the work no later than 120 calendar days from the handover of the construction site. The parties agreed that a written protocol would be prepared for the handover of the construction site, which both parties would sign. The day of handover was considered the day on which the handover protocol was mutually signed. They also agreed that any oral agreements not confirmed in writing would be legally ineffective, and that the contract could only be amended by written addenda.

The plaintiff subsequently requested via email the immediate commencement of work. In response to this request, the defendant's managing director proposed a work schedule, and the work was indeed initiated. After the expiration of the 120 calendar days from the plaintiff's request, the plaintiff withdrew from the contract because the work had not been completed by that date.

It was undisputed between the parties that the defendant had indeed performed construction work for the plaintiff at the place of performance, that some extent of the work had been completed, and that some of the deposits paid by the plaintiff had been utilized. It was also undisputed that a written protocol for the handover of the construction site had not been prepared.

The court of first instance dismissed the lawsuit on the grounds that the written protocol for the handover of the construction site had never been prepared, and therefore the deadline for the completion of the work had not begun to run. The appellate court confirmed this decision.

In this context, the Supreme Court reminded that if the form is required only by the parties' agreement, the content of the legal act can be changed in another form, provided that the agreement does not exclude this. It is also true that if a legal act is not made in the agreed form, it is invalid unless the parties subsequently remedy this defect. Invalidity can only be asserted if the obligation has not yet been fulfilled.

The Supreme Court also referred to its earlier case law, which allows for the reservation of form to be abandoned later. It stated that the parties cannot limit themselves in the future in such a way that they prevent themselves from agreeing otherwise. Their currently expressed will always takes precedence over previously expressed will, including regarding the requirement for form.

The Supreme Court concluded that the subsequent behavior of the parties is legally significant for the agreement to waive the agreed form. The factual circumstances indicate that the defendant proceeded to take over the construction site and began executing the work. The appellate court erred by not examining whether the defendant had actually taken over the construction site and commenced the work, and thus whether the parties fulfilled their obligation in accordance with the agreement, which was not made in the originally agreed written form, as they could deviate from the previous written agreement through their factual actions not made in written form according to prior case law.

Authors:

Vladimír Petráček

Johanna Roháčková