The general rules for the choice of applicable law to a commercial contract are based on the principle of party autonomy, under which the parties are free to choose the law applicable to their contract. However, the freedom of this choice is not absolute since it must not have the objective of defrauding the law that would normally be applicable to the contract.

Commercial contracts can be formed verbally or in writing.

In fact, for certain commercial contracts, a formality is not imposed by law; for other types of contracts, the law requires a written form, generally by obliging the parties to insert certain clauses under penalty of nullity of the contract.

Furthermore, in order to avoid disputes and ensure clarity of the terms and conditions of the contract, it is common for the parties to prefer to use a written form.

General commercial law under OHADA (Organization for the Harmonization of Business Law in Africa) governs commercial sales contracts, defined as contracts for the sale of goods between traders, natural persons or legal entities, including contracts for the supply of goods intended for manufacturing or production activities. OHADA commercial sales law is largely inspired by the United Nations Convention on Contracts for the International Sale of Goods.

However, the main differences between OHADA commercial sales law and the United Nations Convention on Contracts for the International Sale of Goods lie in the scope of application and the nature of the law.

• the scope of application: OHADA commercial sales law governs sales of goods between natural or legal persons who are traders, or those who have opted for entrepreneur status, located in the territory of one of the OHADA member states. For its part, the United Nations Convention on Contracts for the International Sale of Goods applies to sales concluded by the buyer and the seller having their places of business in two contracting states. The civil or commercial nature of the parties or the contract is not taken into consideration for the application of this Convention.
• the nature of the law: OHADA commercial sales law is a uniform law at regional level, while the United Nations Convention on Contracts for the International Sale of Goods is an international treaty.

In the Republic of Congo, there are mandatory rules for specific contracts, such as factoring contracts and commercial sales contracts. However, there is no specific legislation regarding franchise agreements.

Similarly, the African Intellectual Property Organization (OAPI), which regulates intellectual property rights often used in franchise agreements, does not regulate franchise agreements.

The Supreme Court of Congo’s decision dissemination bulletins do not identify the most important court decisions or legal developments issued over the past three years regarding commercial contracts.

This trend can be partly explained by the fact that, through the OHADA Treaty, the member states of this organisation have decided to relinquish their legislative sovereignty in matters falling under business law.

Under the OHADA Treaty, it is the responsibility of the Common Court of Justice and Arbitration (CCJA) to ensure the proper application of matters falling under business law and to harmonise case law.

In recent years, we have not been aware of any major decisions or legal developments handed down by the Common Court of Justice and Arbitration (CCJA) on commercial contracts, nor of any particularly notable trends over the past 12 months.

The applicable law for a commercial contract in our jurisdiction is chosen through a clause inserted into the contract, based on the principle of party autonomy.

If no applicable law is chosen in a commercial contract, local courts will apply the law designated by the conflict of laws rule, in accordance with the rules of private international law, mandatory and security laws that bind all residents of the national territory, and, generally, the law of the country with which the contract has the closest connection.

If a foreign law is chosen in a contract, a prevailing law will be applied by the local court of the Republic of Congo in the following cases:

• when Congolese public policy is at stake, or when the parties have fraudulently rendered Congolese law incompetent; and
• if the applicable foreign law refers to Congolese law.

If one of the parties to the contract is a national of the Republic of Congo, both parties may choose a foreign jurisdiction, if there are foreign elements. This is generally the case when the contract meets the criteria of an international contract.

If both parties to the contract are nationals of the Republic of Congo, they may choose a foreign jurisdiction. However, if the Congolese court is seized, it may refuse to apply this clause.

If one or both parties to the contract are nationals of the Republic of Congo, the parties may agree to arbitration before the dispute arises by means of an arbitration clause or after the dispute arises on the basis of a compromise.

The Republic of Congo has not ratified the United Nations Convention on the Recognition and Enforcement of Foreign Arbitral Awards.

If the parties to a commercial contract choose arbitration, this, in principle, prevents a party within the Republic of Congo from bringing the dispute before a local court under the OHADA arbitration law, which allows the other party to request that court to decline jurisdiction.

There are no general and mandatory local laws protecting a domestic contracting party, such as distributor protection rights.

However, some specific laws enshrine the rule of domestic preference.

Depending on local law, contracts can be concluded either privately or notarially.

The concept of culpa in contrahendo has no legal basis in the legislation applicable in the Republic of Congo (i) because the old Civil Code did not regulate it; and (ii) because the 2016 reform of the Civil Code, which governs this concept, is not applicable in the Republic of Congo.

However, this concept, used in pre-contractual liability and based on the obligation to negotiate in good faith, has been recognised on the basis of doctrine and case law in civil law.

It allows for the tort liability of a party that has committed a fault during contract negotiations.

In this case, the injured party may claim damages for loss suffered due to the loss of opportunity to conclude a contract, damage to reputation, and reimbursement of expenses incurred during contract negotiations.

The conditions under which a party’s general terms and conditions may be included in a contract have not been defined by applicable law in the Republic of Congo on the grounds that the reform of the Civil Code on this issue does not apply. Similarly, OHADA law on commercial sales does not contain specific provisions on the issue. However, they may be included, based on freedom of contract.

In practice, general terms and conditions are included either by attaching them to the contract as an annex or by a stipulation expressly referring to these general terms and conditions.

No national law provides for how or when general terms and conditions apply, for the reason explained in 3.3 Standard Terms and Conditions.

However, these general terms and conditions may be enforced based on the principle that legally formed agreements are binding on those who made them and from the moment they were accepted by the parties.

Clauses in general terms and conditions that create an unreasonable disadvantage may be invalidated or declared void if they are found to be unfair. In this case, they are removed from the contract and considered as never having existed.

The former Civil Code applicable in the Republic of Congo did not contain specific provisions regarding the issue of the battle of forms.

However, this issue was addressed by case law and doctrine, according to which the result of a battle of forms was the invalidity of the contract if it did not meet the required conditions of validity, particularly the formal requirements.

It should be noted that the provisions of the Civil Code, resulting from the 2016 reform, which govern the battle of forms, are not applicable in the Republic of Congo.

According to the law establishing the notarial profession in the Republic of Congo, contracts may be drawn up either in private or authentic form.

However, for contracts of commercial companies, except for limited liability companies, if they are drawn up under private seal, a copy must be filed with a notary.

At local level, there is no law allowing a contract to be effectively concluded via an electronic signature. The decree regulating electronic signatures is only applicable to electronic exchanges.

The draft OHADA Uniform Act on Electronic Transactions has not yet been adopted.

All private deeds recording bilateral agreements, including contracts and treaties deemed to be commercial acts by the OHADA Uniform Act on General Commercial Law, must be registered within three months.

Apart from mutual consent, there are other conditions for the validity of a contract in the Republic of Congo:

• the legal capacity to conclude a contract;
• a firm objective (ie, the purpose of the contract must be determined); and
• lawful cause (in particular, the contract must not be without cause, nor be based on a false cause).

There are no legal provisions in the Republic of Congo on B2B and B2C contracts that address their differences.

There are no legal provisions on consumer protection in the Republic of Congo.

The fundamental concept of civil liability in force in the Republic of Congo is the obligation to compensate for any damage caused to another party due to contractual negligence.

These are damages for loss suffered and lost profits by the obligee in the event of contractual breach or delay in performance.

However, the assessment of the amount of these damages falls under the jurisdiction of the courts.

In contractual matters, the principle of strict liability does not derive directly from the law, but from the interpretation of the law. Case law has established a distinction between an obligation of result, where the debtor undertakes to produce a specific result, and an obligation of means, which consists only of implementing the efforts and diligence necessary to achieve it, without guaranteeing this result.

Failure to perform the obligation of result is sufficient to incur the debtor’s liability.

There is no legal basis for the limitation of liability clause, but it is based on the principle of contractual freedom. There is no distinction between whether it was negotiated individually by the parties or whether it arises from a standard clause.

Force majeure in contractual matters is provided for in the Civil Code applicable in the Republic of Congo.

The party relying on force majeure must demonstrate that the event that prevented it from performing its obligation was unforeseeable, overpowering, and due to an external cause.

In practice, it is common for the parties to define in the contract themselves the events constituting force majeure, which may allow for the suspension of performance or its termination.

The absence of such a clause could prevent parties from seeking relief under local law, since, in the event of a dispute, the courts would apply the legal definition of force majeure provided by the applicable law.

In the absence of specific provisions in the contract, the theory of unforeseeability does not allow a party to a contract to request renegotiation of the contract if unforeseeable and unforeseen circumstances at the time of its conclusion made its performance excessively costly for the following reasons:

• the former French Civil Code, in its provisions applicable in the Republic of Congo, did not recognise the theory of unforeseeability in favour of the principle of the binding force of contracts;
• based on the principle of “non-interference by the judge”, judges should therefore not modify contracts, even if unforeseen circumstances upset their economics; and
• the theory of unforeseeability enshrined in the Civil Code resulting from the 2016 reform is not applicable in the Republic of Congo.

In practice, the inclusion of a clause allowing a party to a contract to request renegotiation of the contract when unforeseeable and unforeseen circumstances at the time of its conclusion make its performance excessively costly (generally referred to as a hardship clause) is not common in all contracts, but is generally found in large contracts.

However, the absence of such a clause would prevent the parties from being authorised to assert this right only if the applicable law does not allow the theory of unforeseeability.

In the event of non-performance, late performance, and breach of conditions, local law provides for the following as the main guarantees and remedies:

• the exception of non-performance, a right allowing a party to a contract to refuse to perform its obligation if the other party has not performed its own;
• specific performance, in the nature of an obligation, a right granted to a party to the contract to request the court to compel the debtor to perform the performance stipulated in the contract;
• price reduction, a right granted to a creditor to request a price reduction proportional to the non-performance, in the event of partial performance of the contract;
• termination or cancellation of the contract, the right granted to a party to the contract to request the cancellation or termination of the contract before an arbitral or judicial body; and
• the enforcement of contractual liability, the right granted to a party to the contract to seek compensation for the consequences of non-performance, namely damages for loss suffered and lost profit.

According to Article 1147 of the Civil Code, in these provisions applicable in the Republic of Congo, the debtor of a contractual obligation may only be exempted from liability if they prove that the non-performance was due to force majeure or another external cause. However, clauses limiting or excluding contractual liability are, in principle, permitted on the basis of freedom of contract.

Despite this, these clauses may be void if they are fraudulent, abusive or concern a fundamental obligation from which the parties cannot contractually derogate themselves.