Doing Business with which Means and Contractual Instruments?









    The status of two important data for traders has been modified by Ohada Uniform Law : businesses and lessees' rights in the framework of commercial leases.


    The book value of this main platform of the businessmen's activities is now taken into account in the concept of goodwill, so as to include such items as the sign, the trade name and customers (art. 104 of the Uniform Act on general commercial law). Apart from this compulsory items, a business may also include such other items as fittings, fixtures, equipment, furniture, goods in stock, the right to lease renewal, operation licenses, patents, trade marks, drawings and designs as well as other intellectual property rights necessary for the operation of the business, provided they are specifically designated (art. 105) . 

    A business may be run :

    - directly by a trader or a commercial company, 

    - or in the framework of a management lease which is an agreement by which the owner of a business hands it over by contract to a manager, a natural person or a coporate body, for the latter to run the business at his/her own risks (art. 106). The manager must have the status of trader and be registered in the Trade and Personal Property Credit Register (art. 107). 

    The owner can grant such a contract only if : 

    - he/she is a trader registered in the Trade and Personal Property Register since at least 2 years, or if he/she has performed the duties of manager or of commercial or technical manager in a company for an equivalent duration, or 

    - he/she has operated the business leased as trader for at least one year. 

    A business may be pledged under the terms and conditions laid down in the Uniform Act on securities (the deed shall entail some compulsory items, some formalities shall be complied with etc.). 

    A business may be sold under the terms and conditions of the Uniform Act on general commercial law (the deed shall also entail some compulsory items, some formalities shall be complied with, notably with regard to third parties etc.). 

    The Commercial Lease 

    The status of this paramount instrument of the basis of businessmen's activities has been updated by Ohada Uniform Law which : 

    - enables the parties to freely chose between leases of specified and unspecified duration, 

    - but also includes a certain number of provisions considered as matters of law and order which shall be complied with by the parties, under penalty of seeing the lease being declared nul and void. 

    These provisions shall apply :

    - in towns of more than five thousand inhabitants, 

    - to the main and secondary premises of buildings rented for commercial, industrial, handicraft or professional purposes,

    - and to non built-on rented estate entailing constructions built for the same purposes either before or after the conclusion of the lease, where such constructions were built or used with the consent and knowledge of the owner. 

    These provisions also govern the leases in which one of the signatories (lessor or lessee) is an industrial or commercial entity governed by public law or a public corporation. 

    Any trader who may prove that he has been running for two years an activity authorized by the lease, with the owner's consent, is entitled to the renewal of his/her lease under the terms and conditions laid down in the Uniform Act. 




    Among the contractual instruments that the businessman may have to use in the framework of his/her business activities, Ohada Uniform Law specifically concentrates on two types : trade middlemen contracts and commercial sale contracts.

    Trade middlemen's contracts

    The scope of the Uniform Law with regard to trade middlemen contracts is rather large. Thus, it is provided for in article 139 that : 

    The provisions of this Book shall govern not only the conclusion of contracts by the middleman, but also any transaction carried out by the latter in view of concluding or performing thesaid contract. 

    They shall apply to all relations between the principal, the middleman and the third party.

    They shall apply, whether the middleman acts in his own name, in the case of a commission agent or a broker, or on behalf of the principal, in the case of commercial agent.

    Trade middlemen are classified into three categories, namely : 

    - commission agents, who, as far as selling or purchasing is concerned, undertake in their own name to carry out, but on behalf of a principal, the sale or purchase of goods, for a commission, 

    - brokers, who are agents whose usual occupation is to put people in contact in order to facilitate the successful conclusion of conventions, deals, agreements, or transactions between them,

    - commercial agents, who are authorized agents whose occupation, in a freelance capacity, is to permanently negotiate and eventually conclude contracts of sale, purchase, hire, or provisions of services on behalf of, and on the account of producers, industrialists, traders or other commercial agents, without being bound to them by a labour contract, 

    With regard to the rules to govern trade middlemen's contracts, Ohada Uniform Act has an extensive approach taking into account at the same time its provisions, the standard rules of agency entailed in domestic laws (which were maintained in force in this regard) and the professional practises in the field concerned. 

    Commercial sale contracts

    Ohada Uniform Law on the one hand filled the gap that existed in quite many Ohada member countries where there was no specific legislation on commercial sales except Senegal, on the other hand aligned Ohada rules on international standards in this field (Vienna Convention).

    Do not fall in the scope of this Uniform Act (art. 203 and 204) : 

    1. the sales to consumers,
    2. the sales after seizure, by order of the court and by auction,
    3. the sales of personalty, negotiable instruments, currencies or foreign exchange and the transfers of debts as well as 
    4. the contracts in the framework of which the party in charge of delivering the goods must mainly supply manpower or other services.

    A commercial sale contract may be either written or oral : it is not subject to any requirement with regard to its form (art. 208 of the same Uniform Act).

    It shall be recalled that in addition to Ohada Law, commercial sale contracts shall be governed by the standard provisions of domestic law relating to sales proper but at the same time due account shall be taken of the parties' will and behaviour as well as professional practices (art. 205 to 207 of the same Uniform Act). 



    General principles
    Article 5. Proof of commercial transactions can be brought by any means with respect to traders. 

    Article 15 : The trade books referred to in article 13 … regularly kept may be admitted as evidence by the judge in disputes between traders. 

    Article 16 : In the course of a dispute, the judge may order, even as a matter of routine, the presentation of trade books, with the view to extract information concerning the dispute. 

    Evidence in the field of commercial leases
    There is no specific provision in this regard. Standard rules shall apply (see general rules here-above).

    Evidence in the field of trade middlemen's contracts
    Article 144. - The middleman's power of attorney may be written or oral. It shall not be subject to any conditions of form. In the absence of a written document, it may be proved by all possible means, including by a witness. 

    Evidence in the field of commercial sales
    Article 208 § 2. In the absence of a written document, a commercial sales contract may be proved by any mean, including by witness. 

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