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).