Title
OHADA Uniform Act Relating to General Commercial Law (Translation)
Content

THE ORGANISATION FOR THE HARMONISATION OF BUSINESS LAW IN AFRICA

UNIFORM ACT RELATING TO GENERAL COMMERCIAL LAW

Translation

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BOOK IV - TRADE MIDDLEMEN

PART 1 - COMMON PROVISIONS

CHAPTER 1 - DEFINITION AND SCOPE

Article 137:

A middleman shall be a person who has the power to act or who intends to act, on a regular basis and as an occupation, on behalf of another person, called the principal, for the purpose of concluding a commercial contract of sale with a third party. 

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PART 4 - COMMERCIAL AGENTS

Article 184:

The commercial agent shall be an authorized agent whose occupation, in a freelance capacity, shall be to permanently negotiate and eventually conclude contracts of sale, purchase, hire, or provision of services on behalf of, and on the account of producers, 

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industrialists, traders or other commercial agents, without being bound to them by a contract of employment.

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BOOK V - COMMERCIAL SALE

PART 1 - SCOPE AND GENERAL PROVISIONS

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CHAPTER 2 - GENERAL PROVISIONS

Article 206:

In matters of commercial sale, the will and conduct of one party must be interpreted in accordance with the latter's intention, where the other party knew or could not ignore such intention. 

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The will and conduct of one party shall be interpreted in accordance with the meaning a reasonable person having the same status as the other party, and placed in the same situation would have given them. 

To determine the intention of one party or of a reasonable person, it is necessary to take into account factual circumstances, particularly negotiations which might have occurred between the parties, the practices established between them, and even practices in force inthe profession concerned.

Article 207:

The parties shall be bound by the practices they agreed upon and by the customs established in their commercial relations.

Except where there are agreements between the parties to the contrary, they are supposed, in the commercial sales contract, to have tacitly referred to the professional practices they knew or ought to have known, and which, in trade, are widely known and generally observed by parties to contracts of the same type in the commercial sector concerned.

Article 208:

The commercial sales contract may be written or oral; it shall not be subject to any condition of form.

In the absence of a written document, it may be proved by all possible means, including a witness.

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PART 2 - ESTABLISHMENT OF A CONTRACT OF SALE

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Article 217:

The contract shall be concluded from the moment when the acceptance of an offer takes effect, in accordance with the provisions of this Book.

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PART 3 - OBLIGATIONS OF THE PARTIES

CHAPTER 1 - THE SELLER'S OBLIGATIONS

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Section 1 : Delivery
Article 220:

Where the seller is not bound to deliver the goods at a specific place, his delivery obligations shall consist of:

a)

handing over the goods to a carrier for delivery to the buyer, where the contract of sale provides for such transportation;

b)

making the goods available to the buyer where they were manufactured, or where they are stored, or at the place where the seller has his principal business, with respect to all other cases.

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Article 222:

The seller shall deliver the goods:

a)

where a date is specified in the contract or may be determined in reference to the contract, on that date;

b)

where a period of time is specified in the contract, or may be determined in reference to the contract, at any time during that period;

c)

and in any other case, within a reasonable period from the time the contract is concluded.

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CHAPTER 3 -PENALTIES FOR THE NON-RESPECT OF CONTRACTUAL OBLIGATIONS

Section 1 - General Provisions

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Article 246:

Where, before the date of performance of the contract, it is clear that one of the parties will fail to fulfil an essential part of his obligations, the other party may bring an action before the competent court for termination of the contract.

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Section 4 - Interest and Damages
Article 263:

Where a party fails to pay the contract price or any other sum owed, the other party shall have a right to interest on the sum owed, calculated on the basis of the legal interest rate applicable in commercial transactions, without prejudice to damages that he may claim for the loss inflicted on him.

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Interest shall accrue from the date of dispatch of the formal notice addressed to the other party by registered letter with acknowledgement of receipt or by any other means in writing.

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Article 266:

The party relying on an essential breach of the contract shall take all reasonable measures, under the circumstances, to minimise the loss, including the profit lost due to such breach. Where he fails to do so, the party in default may request a reduction in damages equal to the amount of the loss that would have been avoided.

Section 5 - Exoneration from liability
Article 267:

A party shall not be liable for failure to comply with any of his obligations where he proves that such failure is due to an impediment beyond his control, such as the act of a third party or cases of force majeure.

Referring Principles
Trans-Lex Principle: I.2.2 - Trade usages
Trans-Lex Principle: II.1 - Prerequisites and effects of agency
Trans-Lex Principle: IV.2.1 - Contractual consent
Trans-Lex Principle: IV.4.1 - Freedom of Form
Trans-Lex Principle: IV.5.1 - Intentions of the parties
Trans-Lex Principle: V.1.1 - Place of performance
Trans-Lex Principle: V.1.2 - Time of performance
Trans-Lex Principle: VI.3 - Force majeure
Trans-Lex Principle: VI.5 - Anticipatory breach
Trans-Lex Principle: VII.4 - Duty to mitigate
Trans-Lex Principle: VII.6 - Duty to pay interest
A project of CENTRAL, University of Cologne.