Introduction

English common law lawyers working on Kuwait‑facing transactions quickly discover that the Kuwait Civil Code takes a more codified, will‑and‑form oriented approach to contract formation and authority than English doctrine. This article highlights key differences on offer and acceptance, form, capacity, and agency, and flags execution steps that often catch out standard English‑law templates. It also explains why localizing documents with GLA & Co is essential to validity and enforceability in Kuwait.

Kuwait’s Civil Code defines a contract as the coupling of an offer and acceptance producing effects recognized by law, concluded once acceptance reaches the offeror if the object and cause are lawful. Consent must be expressed and communicated, and may be by words, writing, generally understood signs, or conduct; silence may exceptionally constitute acceptance where prior dealings or clear advantage exist. The Code also fixes the time and place of contracting by receipt of acceptance. In contrast to English law’s emphasis on consideration and intention, Kuwaiti law centers on will manifestation, legality of object and cause, and communication of acceptance. Fraud, mistake, and duress render contracts voidable, and the Code includes exploitation and lesion remedies in defined cases—features unfamiliar to English practitioners.

Form is generally not required for validity unless statute or agreement stipulates otherwise; if the law requires a particular form and parties fail to observe it, the contract is null. Where the parties stipulate form as a validity condition, it must be observed. Ambiguous prescriptions are presumed for proof, not validity. Preliminary contracts can be specifically enforced, and a judgment may substitute for the final instrument. English‑style assumptions that “no formality unless statute” broadly align, but Kuwaiti law enforces these consequences through codified nullity and judicial substitution rules.

Capacity rules are likewise codified. Full capacity arises at 21; below that, regimes apply for minors and those under interdiction or with diminished capacity, with void, voidable, or restricted effects depending on the disposition. A minor who fraudulently masks incapacity may be liable for the counterparty’s damages, and a court can refuse nullification by way of compensation. English practitioners should not rely on broad “authority and capacity” reps alone; diligence on age, guardianship, or curatorship is often necessary.

Agency and authority are treated with granularity. Contracts may be concluded by procuration unless a law requires personal conclusion. The scope of an agent’s authority is determined by the constitutive instrument, but if the principal has publicized broader authority, counterparties who knew or should have known may rely on that publicized scope—even if it exceeds the written mandate. Within mandate, effects attach directly to the principal; if the agent does not disclose agency, the counterparty need not treat the principal as party unless it knew or was indifferent. Unauthorized acts do not bind the principal absent ratification; the pseudo‑agent may be liable in damages if the counterparty was not on notice. These rules cut across English “actual/apparent authority” case law and make evidencing authority, disclosure of capacity, and public notices central to execution risk.

There is a further layer when the relationship itself is an agency contract. If the underlying disposition requires form, the agency must satisfy that same form. A general mandate confers only acts of management; a special mandate is required for dispositions such as donations, sale, mortgage, composition, admission, arbitration, oaths, or litigation. Overstepping a general mandate with a disposition that requires a special mandate invites validity challenges. English‑law signing mechanics that rely on broad corporate authorizations can be insufficient in Kuwait if a special mandate is required by statute or the nature of the act.

Interpretation

Interpretation also diverges. Clear text controls; if ambiguous, courts ascertain common intention from the contract as a whole and circumstances, guided by usage, equity, and mandatory duties of good faith and honorable dealing. Contracts include what custom and equity require; adhesion terms may be moderated. For formation and authority, courts may look beyond boilerplate to surrounding circumstances and publicized authority when testing who is bound and on what form.

These differences have tangible execution implications. Under the Civil and Commercial Procedures Law, legal persons are domiciled where their management is located; process and notices to companies must be served at management headquarters to a recognized manager or legal representative. Powers of attorney for litigation must be evidenced. Courts commonly require originals or certified instruments and may insist on official translations for foreign‑language documents. English‑style “authorized signatory” schedules may fail if they do not align with Kuwaiti evidentiary expectations and the Civil Code’s special mandate regime.

Practical Steps

Practical steps for English practitioners include: verifying capacity (age, interdiction) and obtaining guardianship/curatorship approvals where needed; ensuring the signatory’s authority matches a valid mandate—general for acts of management, special for dispositions like sales, mortgages, compositions, arbitration agreements, and admissions; matching agency form to the form of the underlying disposition if prescribed; disclosing representative capacity in execution blocks to avoid unintended personal liability; and aligning signature blocks, certifications, and translations with Kuwaiti procedural and evidentiary norms.

Finally, Kuwait’s remedial architecture matters at formation. Preliminary agreements to execute a final contract can be specifically enforced, with a final judgment substituting for the promised instrument. Language that would be “subject to contract” under English practice should be validated against Kuwaiti rules to avoid unintended enforceability.

In short, Kuwait’s codified approach to consent, form, capacity, and agency creates traps for the unwary when deploying standard English‑law templates. GLA & Co localizes cross‑border documentation to conform to the Civil Code’s mandate and form requirements, prepares compliant powers of attorney where a special mandate is required, validates corporate authority and execution mechanics against Kuwaiti evidentiary practice, and calibrates pre‑contract documents to avoid unintended specific enforcement. Early engagement with local counsel helps ensure your contract is negotiated, formed, authorized, and executed in a manner Kuwaiti courts will recognize and enforce.

For more information please reach out to our Managing Partner, Alex Saleh at alex.saleh@glaco.com