The balance between the parties in Law N° 2015/018 of December 21, 2015 governing the commercial activity in Cameroon

Author:Joseph Emmanuel Yayi Lipem
Position:Faculty of Laws and Political Science, University of Douala Cameroon
Pages:347-375
SUMMARY

On the 21st of December 2015, the Cameroonian legislature adopted Law N° 2015/018 with the aim of modernizing the mechanisms put in place for the supervision of the commercial activity in this State. This modernization results in the establishment of tools aimed at eliminating situations which are detrimental to the contractual balance. The idea behind these provisions is to reinforce the clarity ... (see full summary)

 
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The balance between the parties in Law N° 2015/018 of Dece mber 21,
2015 governing the commercial activity in Cameroon
Assistant lecturer Joseph Emmanuel YAYI LIPEM
1
Abstrac t
On the 21st of December 201 5, the Camero onian legislat ure ad opted Law N°
2015/018 with the ai m of modern izing th e mechanisms put in place for the sup ervision of
the commercial activi ty in this Stat e. This modernizat ion results in the establish ment of
tool s aimed at eli minat ing situation s which are detrimental to the con tractual ba lance. The
idea be hind these pro visions is to reinforce th e cl arity and integrity of c onsent when
concl uding the cont ract, whil e at th e same time elimin ating th e abuses that h ave endured
durin g th e conc lusion. However, t he asse ssment of these measures revea ls a d iminished
efficiency. These short comings are due to t wo reasons: the discriminat ion a gainst the
protec tion of vi ctims of the imb alance acco rding to the "co nsumer / professio nal"
distin ction made and the lack of i nstruments to rest ore th e bal ance in t he contractu al
relati onship of the pa rties.
Keywords: Con tractual Balance - Weaker Party - Sig nificant imbalance - Unfair
terms - Evi dence.
JEL Cla ssification: K2, K12, K42
1. Introduction
"Justice is about, not things and forces, but relations between
human"
2
. Trade is the environment par excellence of human interactions in a
State. Hence the imperative of security that promotes the OHADA
3
. By adopting
Law No. 2015/018 of 21 December 2015
4
, the Cameroonian legislator has
1
Joseph Emmanuel Yayi Lipem Faculty of Laws and Political Science, University of Douala,
Cameroon, josephy ayi@gmail.com.
2
R. Guardini, Le Seigneur, t. I, A lsatia, 1946, p. 341 ; see also Editions ALSATIA 1962, in-8 broché
de 350 p ages + 288 pages, méditations sur la personne et la vie de Jésus-Christ, traduit par R. P.
LORSON S. J.
3
"The Contracting Parties to the Treaty on t he Harmonization of Business Law in Africa, [...] aware
that it is essent ial that this right be applied expeditiously, under conditions ensuring the legal
certainty of economic activities, in order t o To promote their development and to encourage
investment. "P reamble to t he Treaty on the Harmonization of Business Law in Africa (OHADA),
done at Port Louis on 17 October 1993, as amended by the Treaty Of Quebec City October 17,
2008.
4
Law No. 2015/018 of December 21, 2015 governing the commercial activity in Cameroon
designated thereafter "Law of December 21, 2015". See S. Nandjip M oneyang, «Le nouveau visage
de l’activité commerciale au Cameroun : le clair-obsur de la loi n° 2015/018 du 21 décembre 2015
régissant l’activité commerciale au Cameroun », Lenemro Revue trimestrielle de dr oit économique,
N° 2016/1, p. 4.
Volume 6, Issue 2, December 2016 Juridical Tribune
348
materialized its commitment to modernize fiscal and legal framework of
commercial activity. This modernization emerges from the substantial difference
between the new version and the old Law No. 90/031 of 10 August 1990
specifying the conditions to carry a commercial activity in Cameroon
5
. What about
balance in contracts?
The word balance means "The harmonious proportion, the correct ratio
between two opposite elements, the fair distribution of parts of a whole"
6
. Law No.
2015/018 of 21 December 2015 advocates two mechanisms of protection against
contractual imbalance: the classical protection proposed by the autonomy of the
will and the intervention of the State. In 2011, the legislature passed the
Framework Law No. 2011/012 concerning consumer protection in Cameroon
7
in
order to fight against unfair terms imposed by a supplier or service provider who
benefit from an unreasonable or excessive superiority. The law of December 21,
2015 abounds in the same direction, and reminds the merchant imperatively not to
take advantage of his economic abilities and skills to disadvantage the consumer
odiously. As drafted, the content of Law No. 2015/018 of 21 December 2015
governing commercial activity in Cameroon seems to protect the consumer against
the Professional
8
, and give little importance to the latter, when confronted with a
stronger counterparty who abuses his power. It is reasonable to ask whether it is
appropriate to repeat as many provisions for the benefit of the consumer, whereas it
is up to consumer law to organize trade between the person who uses the products
to satisfy his own needs and not for resale, process or use them as part of his
profession
9
.
The answer is yes for three reasons. First the Law n° 2011/012 of May 6,
2011 concerning consumer protection in Cameroon is a framework law; therefore it
is too general, and sparse
10
. For this reason then it does not identify the crucial
issues of consumer law
11
. It refers only to restrictive business practices
12
, and
5
Art icle 4 of the law of December 21, 2015 facilitates the understanding of t he provisions through
the definitions of notions and words sp ecific to the national and local commercial landscape, as a
distributor wholesaler, mall, wholesale, business, consumer, professional, Distribut ion, secondhand
trade, non-sedentary t rade, act of commerce by nat ure, commercial activity , entrepreneur,
submission to regional accounting standards.
6
Dictionary Le Nouveau Petit Robert, p. 914.
7
Designated thereafter "2011 Framework Law". See F. Biboum Bikay, Droit camerounais de la
consommation, éd. Presses Universitaires Libres, 2016.
8
The consumer is also referred t o in the law of D ecember 21, 2015. The legislator expressly cites it
twenty -eight times in the provisions relating to the prot ection of the weaker party.
9
Art icle 2 of the 2011Framework Law and article 4 de Law of D ecember 21, 2015. See F. Biboum
Bikay, Droit camerounais de la consommation, op. cit., p . 13.
10
The Framework Law No. 2011/012 of 06 M ay 2011 on consumer protection in Cameroon contains
only 39 articles. In foreign legislation, Codes are intended for consumer law.
11
Such as aggressive sales, fraudulent maneuvering, fraudulent reticence, illegal p ractices,
subordination of contracts t o game conditions, lottery, or other p roduct subscription, refusal to sell
from the trader, price terms And the characteristics of the goods or services sought.
12
Art. 2 of the 2011 Framework Law: " Restrictive business p ractice: any commercial practice that
requires the consumer to purchase, lease or procure any technology, good or service as a condition
or prerequisite to p urchase, lease or acquire any other technology, good or service".

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