1 Receivables Contracts
1.1 Formalities. In order to create an enforceable debt obligation of the obligor to the seller: (a) is it necessary that the sales of goods or services are evidenced by a formal receivables contract; (b) are invoices alone sufficient; and (c) can a binding contract arise as a result of the behaviour of the parties?
A formal written contract is not necessary to create an enforceable debt obligation. However, such an obligation must be created as a matter of contract or deed. Contracts may be written, oral, or partly written and partly oral. An invoice alone may be sufficient to constitute a contract between the parties if it contains the required elements of a contract. The existence and terms of an oral contract may be evidenced by the conduct of the parties. Where enforceable obligations can be identified with sufficient certainty, a contract may be implied based on a course of conduct or dealings between the parties.
1.2 Consumer Protections. Do your jurisdiction's laws: (a) limit rates of interest on consumer credit, loans or other kinds of receivables; (b) provide a statutory right to interest on late payments; (c) permit consumers to cancel receivables for a specified period of time; or (d) provide other noteworthy rights to consumers with respect to receivables owing by them?
Given the relatively small size of the consumer market and the nature of the financial services industry, there are no statutes or regulations to limit rates of interest, provide a statutory right to interest on late payments or other consumer rights. All such obligations would be governed by the relevant contract, including any obligations to pay default interest (subject to such interest not being so high as to constitute a penalty).
1.3 Government Receivables. Where the receivables contract has been entered into with the government or a government agency, are there different requirements and laws that apply to the sale or collection of those receivables?
No, although sovereign immunity laws may cause enforcement issues.
2 Choice of Law - Receivables Contracts
2.1 No Law Specified. If the seller and the obligor do not specify a choice of law in their receivables contract, what are the main principles in your jurisdiction that will determine the governing law of the contract?
Neither the Rome Convention (80/934/EEC) (the "Rome Convention I") nor Regulation 593/2008/EC (the "Rome Convention II") on the law applicable to contractual obligations have been extended to the Cayman Islands. In the absence of an express choice of law provision, the applicable law of a contract will be that of the country with which it has the closest connection, in light of all the material circumstances. Cayman Islands law recognises the English common law doctrine of forum non conveniens and it is necessary to ensure that, in commencing proceedings, the Cayman Islands court is best placed to deal with the dispute, that it will be the venue most convenient for the particular matter to be resolved and that Cayman Islands law is that with which the contract has its closest and most real connection.
2.2 Base Case. If the seller and the obligor are both resident in your jurisdiction, and the transactions giving rise to the receivables and the payment of the receivables take place in your jurisdiction, and the seller and the obligor choose the law of your jurisdiction to govern the receivables contract, is there any reason why a court in your jurisdiction would not give effect to their choice of law?
No, there is not.
2.3 Freedom to Choose Foreign Law of Non-Resident Seller or Obligor. If the seller is resident in your jurisdiction but the obligor is not, or if the obligor is resident in your jurisdiction but the seller is not, and the seller and the obligor choose the foreign law of the obligor/seller to govern their receivables contract, will a court in your jurisdiction give effect to the choice of foreign law? Are there any limitations to the recognition of foreign law (such as public policy or mandatory principles of law) that would typically apply in commercial relationships such as that between the seller and the obligor under the receivables contract?
The courts of the Cayman Islands will observe and give effect to the choice of the foreign law as the governing law of the receivables contract. The submission by a Cayman Islands obligor or seller in a receivables contract to the laws of another jurisdiction will be legal, valid and binding on the Cayman Islands obligor/ seller assuming that the same is true under the governing law of the contract. However, the courts of the Cayman Islands will not observe and give effect to a choice of the laws of a particular jurisdiction as the governing law of a document, if to do so would be contrary to the public policy of the Cayman Islands.
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Originally published by ICLG.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
