In real estate and investment transactions in Dominican tourist destinations, the use of pre-contractual documents such as the Letter of Intent (LOI) and the Memorandum of Understanding (MOU) is common practice. Their use largely reflects the influence of Anglo-Saxon practices rooted in common law systems, particularly in transactions involving foreign investors.
However, the Dominican Republic operates under a civil law legal system grounded in statutory law, the Civil Code, and special legislation. This structural difference does not invalidate the use of LOIs and MOUs in such transactions, but it does significantly condition their legal effects, particularly when disputes arise between the parties and the signed documentation must be analyzed by a judge or arbitrator.
Under Dominican law, there is no contract without definitive consent regarding the essential elements of the obligation. The intention to be legally bound is not presumed and must be clear, express, and verifiable. In this regard, both the LOI and the MOU: i) do not replace the definitive agreement, ii) do not create full contractual obligations, and iii) in most cases may only produce limited legal effects, depending on their content and drafting.
When a dispute arises, the analysis does not focus on the title of the document, but rather on its actual substance. The judge or arbitrator will assess: i) which clauses are binding, and ii) whether the essential elements of a contract are present.
The primary purpose of an LOI is to move negotiations forward without closing the transaction, where one party wishes to express a serious intention to negotiate while preserving flexibility during the applicable due diligence process. Under Dominican law, an LOI does not obligate the parties to complete the transaction. However, in practice, we may encounter promises of sale disguised as LOIs, where the parties’ express intent to be bound exists, making them potentially enforceable.
In principle, an MOU is used when a preliminary consensus already exists between the parties and there is a desire to document a more structured framework for cooperation. Nevertheless, it is not presumed to be fully binding unless it contains the essential elements of a contract or identifies clear obligations together with the parties’ express intent to be bound. As with LOIs, in the event of a dispute, the legal analysis focuses not on the document’s title but on its actual substance.
As legal advisors, it is our responsibility to properly guide our clients — particularly foreign investors — who come from different jurisdictions where, for example, common law principles prevail and legal tools do not necessarily correspond with Dominican laws and practices. This helps avoid creating unrealistic expectations, since in a litigation scenario issues may arise that negatively impact the client.
The use of LOIs and MOUs in the Dominican Republic is neither incorrect nor incompatible with civil law principles, but it does require legal adaptation. Importing common law models without translating them into the Dominican civil law framework is one of the primary sources of pre-contractual disputes.
At DHOZ Abogados, we understand that the pre-contractual stage is a critical moment in any transaction. Our approach is not to hinder transactions, but to anticipate risks, align expectations, and structure decisions — from the first document through the final closing.
