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ABSTRACT

The Preliminary Draft OHADA Uniform Act on Law of Contracts : Innovations and Debates


Author : Pierre MEYERref : 32008291-317
Type : ArticleN° : 3 of 2008
Price : 47 €Pages : 291-317


Description : Add The Preliminary Draft OHADA Uniform Act on Law of Contracts : Innovations and Debates  to my selection

The UNIDROIT Principles and the preliminary draft Uniform Act on the law of contracts inspired by them are neither civil law nor common law. The preliminary draft, in the OHBLA-member countries, could thus go across the legal borders resulting from colonization, which could help establish a certain universality. In this sense, Africa could be a model from which other experiences of legal harmonisation could draw inspirations. The African region would thus be a model of universality. This observation is particularly topical given the interest that certain African countries that do not partake in the French legal system show in OHBLA. We think particularly of English-speaking countries in the legal family of the common law. Faced with this legislative policy aimed at opening to other legal systems, we have the choice, instead, to focus on the principles and norms enshrined in the French the law of contracts, even though many of these principles and rules are challenged by part of the legal doctrine in France, and this in the name of “civilist tradition” of OHBLA-member States. Some suggest moving in this direction and then logically admit that “the extension [of OHBLA]… still seems possible for countries such as the Democratic Republic of Congo, Rwanda, Burundi, Sao Tome and Principe but hardly for English-speaking countries (Ghana, Nigeria, Kenya…) of which many legal concepts are far from being common with or are lacking in those of the OHBLA law, not to mention those that can be contradictory”. It is not for the doctrine to choose, but rather to clarify the terms of an alternative that involves a choice of the legislative policy as stated above.


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