The Contemporaneous Application of English and French Contract Law in Cameroon
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THE CONTEMPORANEOUS APPLICATION OF ENGLISH AND FRENCH CONTRACT LAW IN CAMEROON Titus Anurike EDJUA, Lie. en Droit (Yaounde), LL.M (Wales). Department of Law, School of Oriental and African Studies, University of London. A Thesis Submitted to the University of London for the Award of the Degree of Doctor of Philosophy in Law. ProQuest Number: 11010553 All rights reserved INFORMATION TO ALL USERS The quality of this reproduction is dependent upon the quality of the copy submitted. In the unlikely event that the author did not send a com plete manuscript and there are missing pages, these will be noted. Also, if material had to be removed, a note will indicate the deletion. uest ProQuest 11010553 Published by ProQuest LLC(2018). Copyright of the Dissertation is held by the Author. All rights reserved. This work is protected against unauthorized copying under Title 17, United States C ode Microform Edition © ProQuest LLC. ProQuest LLC. 789 East Eisenhower Parkway P.O. Box 1346 Ann Arbor, Ml 48106- 1346 2 ABSTRACT OF THE THESIS. As a physical presence, there does exists some form of contract law in Cameroon. This consists mainly of the English common law of contract, the French civil law of contract and to a lesser extent, the customary or indigenous contract laws of Cameroon. One might expect that these three, if put together, will produce what can be termed a Cameroonian contract law. Yet the status of such a Cameroonian contract law, considered in such terms, remains very uncertain for three reasons. Firstly, while contract law in England and France can easily be found in the great mass of relevant reported decisions of their courts, in the great relevant statutes passed by their legislators and in the learned commentary on the subject, the same cannot be said of Cameroon where there is at present no law reporting, very little by way of legislation relating to contract law, and hardly any learned commentary on the subject of contract. Secondly, contract law as applied by the courts is surely disfigured in some way by the persistent deference to English and French authority (some of which is dated), and thus stuck in the habit of derivation from foreign sources of diminishing relevance. Finally, the courts and the legislator, by their continuous neglect of relevant indigenous laws, have failed to sufficiently "Cameroonise" the law of contract. The need to respond to the first problem and to elaborate on the second and third problems combine to form the focus of this thesis. This thesis therefore determines the place of customary contract law and its role, if any, vis-a-vis, the inherited western laws, examines and analyses the operation of English and French contract laws in Cameroon, bearing in mind any important developments in these two countries and provides a detailed overview of contract law in Cameroon. 3 ACKNOWLEDGEMENTS A number of people, not all of whom can be mentioned here, have provided invaluable help, directly or otherwise, in the preparation of this thesis. I shall always be immeasurably grateful to my supervisor, Ian Edge of SOAS, who proved to be a most able academic guide. Equally touching was the fact that he showed so great a personal interest in my non-academic troubles. Dr. W. Menski, postgraduate tutor at SOAS for part of my time there, also deserves my thanks. It was he who responded beyond the call of duty to will me on whenever he had the chance. The Library staff of the Institute of Advanced Legal Studies in London, thelnstitut de Droit Compare in Paris, and the Registry staff of the courts in Cameroon, proved most helpful to me. I wish to thank them for all their troubles. My work for this degree was funded by the Cameroonian taxpayer, to whom I owe thanks. I must also thank SOAS and the Central Research Fund for providing some financial assistance which enabled me undertake the fieldwork for this thesis. I cannot let this opportunity pass without recording my special gratitude to the (British) National Health Service. Not long into this project, I suffered a horrific knee injury that required major surgery. My heartfelt thanks to the staff of the Royal Free Hospital, London, who performed that task very cheerfully,gratis. Finally, I should like to thank my parents and my entire family, especially my aunt, Julie Edjua, for being a constant source of help and encouragement. This thesis is dedicated to my parents, Mary and Andy EDJUA , for all the obvious reasons. TABLE OF CONTENTS. ABSRACT ACKNOWLEDGEMENT TABLE OF CASES TABLE OF STATUTES Chapter One INTRODUCTION 1. The Cameroonian Legal and Judicial System: A Confluence of Two Legal Traditons 31 2. The Aim of the Study 37 3. Why the Law of Contract 40 4. The Scope of the Thesis 46 5. Methodology 47 Chapter Two A CAMEROONIAN CONTRACT LAW? 50 1. Customary Contract Law 51 (1). The Existence and Types of Customary Law Contracts 51 (2). The Approbation of Customary Law 57 (3). The Criteria of the Validity of Customary Law in Non-Native courts 60 (4). Judicial Attitudes 62 2. Modern Contract Law 73 (1). Sources of Contract Law in Anglophone Cameroon 73 (a). The Common Law 74 (b). Doctrines of Equity 77 6 (c). Statutes of General Application 78 (2). Sources of Contract Law in Francophone Cameroon 81 (a). La Loi 81 (b). La Jurisprudence 82 (c). La Doctrine 84 3. Conclusion 85 Chapter Three INTERNAL CONFLICT OF LAWS IN CONTRACTUAL OBLIGATIONS 87 1. The Nature of the Problem 88 2. The Problem of Forum Shopping 90 3. The Scope of Internal Conflict of laws 95 (1). Choice of Jurisdcition 98 (2). Choice of Law 103 4. A Critique of the Current Practice 105 5. The Need for a New Approach 111 6. Conclusion 124 Chapter Four THE NATURE AND STRUCTURE OF CONTRACTS IN CAMEROON. 126 1. The Definition of Contract 126 2. The Classification of Contract 130 3. Civil and Commercial Contracts 133 4. Civil and Administrative Contracts 136 (1). Conceptual Differences between English and French Law 136 (2). Administrative Contracts Determined 142 (a). Statutory Determination , 143 (b). Judicial Determination 144 (3). Definitional Problems in Cameroon 146 (4). Jurisdictional Concerns 155 7 (5). Conclusion 160 Chapter Five OFFER AND ACCEPTANCE 165 1. The Requirement of Offer and Acceptance 167 2. Offer and Invitation to Treat 172 3. Concordence between Offer and Acceptance 175 (1). Compliance with Offer 176 (2). Compliance with Method of Acceptance 177 (a). Acceptance by Conduct (b). Acceptance by Silence 178 (3). Compliance with Time 182 4. Revocation of the Offer 183 5. Conceptual Difficulties of Offer andAcceptance 189 6. The Time and Place of Contract Formation 193 (1). The Time of Contract Formation 194 (2). The Place of Contract Formation 200 Chapter Six. CONSIDERATION AND CAUSE 202 1. Consideration 203 (1). The Origin and Definition 204 (2). Judicial Practice in Cameroon 207 (a). An Informal Agreement Must be Supported by Consideration 207 (b). Past Consideration 208 (c). Consideration Must Move From the Promisee 210 (d). Adequacy and Sufficiency of Consideration 211 (3). Consideration and Modification of Contracts 214 (a). Promissory Estoppel 219 (b). Consideration and Part Payment 223 8 (c). The Effect of Williams v. Rofey on the rule in Stilk v. Myrick 225 (4). Consideration and Irrevocable Offers 230 (5). Consideration and Family (Non-Commercial) Arrangements 234 (6). On the Need for Reform of Consideration 238 2. CAUSE 242 (1). The Meaning of Cause 243 (2). The Doctrine of Cause in Cameroon 246 (a). The Absence of Cause 247 (b). Unlawful Cause 249 (3). Critique of Cause 250 Chapter Seven DEFECTIVE CONTRACTS 254 1. Defects in Reaching Agreement 254 (1). Mistake and Erreur 255 (A). Mistake 256 (i). Mistake as to the Identity of the Other Party 259 (ii). Mistake as to the Substance of the Subject Matter 261 (iii).Mistake as to the Nature of the Transaction 263 (iv). Illiteracy, Language Problems and Documents Mistakenly Signed 265 (B). Erreur 272 (1). Erreur-Obstacle 273 (ii). Erreur-Vice du Consentement 277 (iii). Erreur-lrelevante 280 (2). Misrepresentation and Dol 281 (A). Misrepresentation 281 (1). The Guiding Principles 282 (2). Types of Misrepresentation 284 (i). Fraudulent Misrepresentation 285 9 (ii). Negligent Misrepresentation 288 (iii).Innocent Misrepresentation 293 (B). Dol 294 (1). Conditions for Nulity on GroundsDol of 296 (2). Reticence Dolosive 298 (3). Proof ofDol 299 2. Defects Relating to the Validity and Enforcement of Contracts 301 (A). Contracts Affected by Informality 301 (1). Formal Requirements in Cameroon 302 (2). The Functional Justification of Formal Requirements 311 (3). Criticisms of the Present Law 316 (i). On Their Broad Scope 317 (ii). On the Workability of Formal Requirements 320 (iii).On The Effect of Failure to Comply 323 (4). What is to be Done with the Law on Formality? 329 (B). Illegality 336 (1). Types of Illegality 337 (1). Contracts Prohibited by Statute 337 (ii). Contracts Illegal at Common Law on Grounds of Public Policy 338 (iii).Contracts Prohibited by La Loi 342 (iv). Contracts Contrary toOrdre Public 343 (2). Consequences of Illegality. 345 Chapter Eight REMEDIES FOR BREACH OF CONTRACT. 359 1. Damages 363 (1). The Compensatory Nature of Damages 364 (2). The Interests Protected 368 10 (a). Recoverable Loss 369 (b). The Assessment of Damages 370 (3). Limitation of Damages 378 (a). Remoteness 379 (b). Mitigation 383 (c). Causation 388 (d). Contributory Negligence 390 (e). Mise en Demeure 397 2. Specific Performance and Execution Forcee 400 (1). Specific Performance 400 (a). Principles for the exercise of discretion 402 (b). Contract-Types 407 (2). Execution Forcee 409 (a). The Nature of the Remedy 409 (b).