Contract formation

Good faith in negotiating

Is there an obligation to use good faith when negotiating a contract?

Yes, pursuant to article 1816 of the Federal Civil Code (of supplementary application to commercial law), contracts may be invalidated if a party’s bad faith affected the other party’s consent. Therefore, there is an implicit obligation for all parties in a contract to negotiate in good faith to ensure that consent is valid.

‘Battle of the forms’ disputes

How are ‘battle of the forms’ disputes resolved in your jurisdiction?

Pursuant to the Federal Civil Code (articles 1803-1811), the offeror is bound by its offer if it receives an acceptance by the other party on the same terms proposed in the offer. Thus, the offeror is released from the offer if the acceptance is made with different terms, and in such a case, the party that modifies the terms becomes the new offeror. The agreement will only be perfected when the terms of the acceptance mirror those of the offer.

Language requirements

Is there a legal requirement to draft the contract in the local language?

No. In practice, it is common to have commercial agreements drafted in English when parties have different nationalities. In the case of a trial before a Mexican court, it is necessary to present a translation of the agreement, certified by an expert authorised by the court. For that reason, it is recommended to draft the agreement in two languages (two columns), when possible.

Online contracts

Is it possible to agree a B2B contract online?

Yes, commercial agreements may be entered into online or through any electronic media or technology.

Any commercial operation that is performed through electronic means shall observe the provisions of the Commercial Code related to electronic commerce and data messages, including:

  • Information contained in data messages (information generated, sent, received or stored by electronic or optical means or by any other technology) is valid, has legal effect and is fully enforceable.
  • The information contained in the data message maintains its integrity, is accessible for further consultation and is attributable to a party, as established in article 93: ‘When the law requires that acts, agreements or contracts must be made in written form, this requirement will be deemed to be complied with in the case of data messages, provided that information contained therein is kept integral and is accessible for further consultation, without regard to the format in which it is contained or is represented.’
  • For a data message to be equivalent to a written document (which for contract formation means written and signed), the message will be attributable to the relevant party who signs it by an electronic signature that complies with requirements established by law.
  • Electronic signatures are equivalent to handwritten signatures as to their legal effects, and are admissible as evidence in litigation, if they are electronic data contained in a data message or attached or logically associated thereto by any technology, which is used to identify the signatory in relation to the data message and to indicate that the signatory approves the information contained in the data message.
  • Electronic signatures must be reliable: the electronic signature creation data must relate exclusively to the signatory and must be under the exclusive control of the signatory at the moment of the signing; it must be possible to detect any alteration to the electronic signature made after the signing and it must be possible to detect any alteration to the integrity of the data message made after the signing.