Under Ivorian and OHADA law, parties are free to choose the law governing their commercial contract, provided the choice is clear and does not violate Ivorian public policy or mandatory rules. If no law is selected, the applicable law is determined based on factors such as the place of performance or the parties’ main place of business. Certain provisions of OHADA Uniform Acts will apply regardless of the chosen law.

Under Ivorian and OHADA law, commercial contracts are generally not subject to any formalism requirements. The principle of mutual consent governs contracts in Côte d’Ivoire: a contract is valid with mutual consent, legal capacity, a lawful cause and a definite object. No specific form is required unless the law provides otherwise. However, written contracts are preferred for evidentiary purposes.

Commercial contracts in Côte d’Ivoire are governed by the OHADA Uniform Act on General Commercial Law, the Ivorian Civil Code (for matters not addressed by OHADA instruments), and sector-specific legislation.

Côte d’Ivoire is not a party to the UN Convention on Contracts for the International Sale of Goods (CISG). Therefore, its provisions do not apply by default.

The main differences between both laws are as follows.

• Form – Ivorian law may require written form; CISG permits oral agreements.
• Formation – CISG provides detailed rules on revocation; Ivorian law follows civil law principles.
• Obligations – both require delivery and payment, but CISG adds conformity and defect notice rules.
• Breach remedies – Ivorian law emphasises damages/specific performance; CISG allows contract avoidance.
• Risk transfer – Ivorian law = delivery; CISG = transfer to first carrier.
• Good faith – both require it, though CISG stresses uniform interpretation.

While contractual freedom prevails, certain rules are mandatory. Examples include:

• commercial agency – notice and compensation rules under OHADA law;
• commercial leases – rules on term, renewal, registration;
• consumer protection – mandatory rules under Law No 2016-412 on unfair terms; and
• accounting and registration – commercial acts may require registration or formal accounting under OHADA.

Also, in commercial matters, the proof may be by any means, so writing is not mandatory.

Recent decisions reaffirm the binding nature of registration, formal requirements and consumer protection laws. Courts increasingly apply the consumer law’s provisions to unfair clauses. A growing trend over the past several years is the recognition of electronic signatures, aligning with the government’s digital transformation agenda.

Parties to a commercial contract in Côte d’Ivoire are free to choose the law governing their agreement, in accordance with the principle of contractual freedom under Article 1134 of the Ivorian Civil Code and OHADA principles. However, the selected law must not contradict Ivorian public policy or mandatory legal provisions.

Where no governing law is specified, the competent court will determine the applicable law based on private international law principles, generally favouring the law of the place of performance or of the party assuming the essential obligation.

Even when the parties choose foreign law, Ivorian courts will apply prevailing local provisions if the contractual clauses are contrary to Ivorian public order. This applies in particular to rules relating to commercial registration, tax compliance, consumer protection, labour regulations and certain OHADA standards that are mandatory in nature.

Côte d’Ivoire recognises the parties’ freedom to designate a foreign court as the competent forum, whether one or both parties are Ivorian. This choice must be clearly stated in the contract and not infringe public order. However, for certain disputes (eg, immovable property located in Côte d’Ivoire or matters involving exclusive jurisdiction), local courts may retain competence regardless of the parties’ agreement.

Parties are free to opt for arbitration under OHADA’s Uniform Act on Arbitration Law. If arbitration is chosen, local courts will generally respect this choice and decline jurisdiction. However, in urgent cases, courts may grant provisional or conservatory measures without ruling on the merits.

Local courts may also assume jurisdiction if the defendant does not object to their competence in due time.

While Côte d’Ivoire has no specific protective rules akin to distributorship laws in some jurisdictions, general public policy and consumer protection provisions may still apply regardless of the arbitration clause.

Under Ivorian and OHADA law, a commercial contract is valid as long as four conditions are met:

• free and informed consent of the parties (not obtained through fraud, violence or error);
• legal capacity (parties must not be under guardianship or legal incapacity);
• definite object (contract must have certain and clearly defined subject matter); and
• lawful cause (purpose of the obligation must not contravene public policy or morality).

There is no formal requirement for written contracts under general contract law; oral agreements are legally binding. However, written contracts are strongly recommended for commercial transactions as they provide legal certainty and serve as formal evidence in the event of a dispute. Certain contracts, such as corporate acts, leases exceeding a specific term, or transfers of assets, may be subject to specific written or notarised form requirements.

While the concept of culpa in contrahendo is not expressly defined in Ivorian law, the Civil Code recognises pre-contractual liability under the general principle of tort liability. Article 1382 of the Civil Code states that “any act of a person that causes damage to another obliges the person through whose fault it occurred to repair it”.

Therefore, if one party behaves in bad faith during negotiations (eg, by abruptly breaking off discussions, providing misleading information, or intentionally delaying conclusion of the agreement), the injured party may seek damages. To succeed, the claimant must demonstrate:

• the existence of a fault (eg, bad faith, fraud, sudden withdrawal);
• a real and measurable harm; and
• a direct causal link between the fault and the harm.

Compensation is assessed based on the actual loss incurred during the negotiation phase, not on the expected benefits of a contract that was never concluded.

Standard terms and conditions may be incorporated into a commercial contract provided they have been brought to the other party’s attention and accepted before or at the time of contract conclusion. The terms can be inserted directly into the body of the contract, referenced by annex, or mentioned as forming the entire agreement.

The key requirement is proof of mutual consent. Where there is disagreement or ambiguity regarding the inclusion of standard terms, courts will examine whether the other party was clearly informed and had the opportunity to review and reject them.

Standard terms are enforceable in Côte d’Ivoire if they were accepted by all parties at the time of contract formation. If a dispute arises, the burden is on the party invoking the terms to prove that they were effectively incorporated into the contract.

In the absence of agreed standard terms, statutory obligations under the OHADA Uniform Act on General Commercial Law will apply. These include core seller obligations such as:

• duty to deliver the goods or services as agreed;
• duty to ensure conformity with contractual specifications; and
• duty to provide a warranty for defects or malfunction.

Failure to comply with these obligations may trigger legal remedies, including damages, contract termination, or restitution.

Under Ivorian law, particularly Articles 69 and 70 of Law No 2016 412 on Consumer Protection, any clause in a contract between a professional and a non-professional or consumer that creates a significant imbalance between the parties’ rights and obligations may be deemed abusive and declared void. The professional must prove that such a clause is fair, and the assessment is made at the time of contract formation. Abusive clauses are considered unwritten, but the rest of the contract remains enforceable if it can stand without them. These rules are mandatory and apply regardless of the form or medium of the contract. There is therefore a possibility that standard terms might be invalidated because of an unreasonable disadvantage to one of the parties.

Ivorian law does not provide a specific statutory framework for “battle of the forms”. In practice, Ivorian courts rely on general contract principles to resolve such conflicts.

When conflicting standard terms are exchanged between the parties, the prevailing terms are typically those accepted last before performance begins, assuming no objection was raised.

Certain commercial contracts must be notarised under Ivorian law. These include articles of association, real estate transfers, pledges of business assets, and other documents requiring registration or publicity.

For most commercial agreements, including service contracts and sales between merchants, no notarisation is required. Original signatures are preferred, but electronic signatures are legally recognised under the Ivorian law on electronic transactions, provided that the signature is secure and linked to a qualified electronic certificate issued by an electronic certification service provider approved by the Telecommunications Regulatory Authority of Côte d’Ivoire (ARTCI).

Official registration is required for specific contracts under Ivorian law, such as company incorporation documents and amendments (with the RCCM), real estate transactions and long-term leases (with the land registry), pledges and other security interests (with the RCCM), and assignments of business assets.

Non-registration of such contracts may affect their enforceability against third parties or limit their legal effect.

In addition to mutual consent, a valid commercial contract in Côte d’Ivoire requires legal capacity of the parties and a lawful and certain object.

Moreover, good faith is a general principle of contract law and must govern both negotiation and performance. Contracts concluded through fraud, coercion or misrepresentation may be annulled.

In Côte d’Ivoire, contracts entered into between businesses (B2B) and those concluded between a professional and a consumer (B2C) fall under distinct legal frameworks.

B2B contracts are primarily governed by the OHADA Uniform Acts, in particular:

• the Uniform Act on General Commercial Law (AUDCG), which regulates the formation, performance, and evidentiary rules applicable to commercial transactions; and
• the Uniform Act on Commercial Companies and Economic Interest Groups (AUSCGIE), which applies to relations between companies and contractual undertakings within the scope of business operations.

These community-based texts are complemented by the Ivorian Civil Code, which governs contractual obligations, especially with respect to contract formation, performance, and liability in case of breach.

Conversely, B2C contracts are subject to a specific legal framework, primarily based on Law No 2016-412 of 15 June 2016 on Consumer Protection and its implementing texts. The Ivorian Civil Code also applies, particularly with regard to contract formation, performance, and liability in the event of non-performance.

The main consumer protection rights in Côte d’Ivoire are provided under Law No. 2016-412 on Consumer Protection. Consumers benefit from the following rights.

• General pre-contractual information right – before entering into any contract, the professional must provide clear, comprehensible, and fair information to the consumer, including key characteristics of the goods or services, the total price, delivery and performance conditions, identity of the seller, and applicable guarantees.
• Right of withdrawal – the consumer has a right of withdrawal within ten business days for any distance sale, off-premises transaction, or sale resulting from solicitation, without needing to justify their decision or pay a penalty (except for return shipping costs).
• Protection against unfair terms – any clause that creates a significant imbalance between the rights and obligations of the professional and the consumer is deemed unwritten.
• Product and service compliance – the seller must deliver a product that conforms to the contract and is free from defects that render it unfit for its intended use. The consumer benefits from a legal guarantee of conformity and a commercial warranty that may include refund, replacement or repair.

In Côte d’Ivoire, civil or commercial liability requires the cumulative presence of three elements: a fault, actual damage, and a direct causal link between the fault and the damage.

Fault may arise either from an act or omission (tort liability) or from non-performance, improper performance, or delay (contractual liability). Once liability is established, the liable party is obliged to fully compensate the victim, restoring them as closely as possible to their pre-damage state. These three elements are inseparable: the existence of a fault without actual damage is insufficient to establish liability.

Under tort law, certain types of liability may arise without fault.

• Liability for things in one’s custody – a person may be liable for damage caused by an object in their custody (ie, under their control, direction, and use), without needing to prove fault – only the causality between the object and the damage.
• Liability for the acts of others – z person may be held liable for damage caused by another, particularly:
1. parents for acts committed by their minor children living under their roof and authority; and
2. employers for acts committed by employees in the course of their duties.

Ivorian law does not recognise punitive damages. Compensation is based on full reparation of the proven damage, and there is no statutory cap on damages. Victims must assess their loss, and judges freely determine the awarded amount.

Strict liability also exists under Ivorian law for:

• the acts of others (eg, parents or employers); and
• things under one’s custody.

As a general rule, Ivorian law allows the inclusion of limitation of liability clauses in contracts. However, these clauses must comply with rules on:

• unfair terms (especially in B2C contracts);
• contractual freedom (no imposed terms); and
• public policy.

Under Ivorian law, the concept of force majeure is expressly provided for in the Civil Code, which stipulates that when an event of force majeure is established, no damages are payable. Thus, even in the absence of a contractual clause, a party may invoke force majeure to be released from liability. In practice, recognition of a case of force majeure exempts the party concerned from any liability for non-performance or delay in the performance of its obligations.

For an event to be classified as force majeure, three cumulative conditions must be met:     

• unpredictability – the event could not reasonably have been foreseen at the time the contract was concluded;
• irresistibility – it was impossible to prevent or overcome its effects; and
• external cause – the event is beyond the control of the party invoking it.

Finally, the parties must act in good faith and refrain from any behaviour likely to aggravate the consequences of the force majeure.

Although it is common to include a force majeure clause in commercial contracts, its absence does not prevent a party from invoking it under statutory law, since the concept is legally recognised by the Civil Code. Thus, even without a contractual provision, a party may invoke force majeure by demonstrating that the event meets the cumulative criteria of unpredictability, irresistibility and externality.

The cardinal principle in Ivorian contract law is the principle of the binding force of contracts enshrined in the Civil Code. Thus, a party cannot unilaterally request a revision of the contract due to a change in economic circumstances, unless the contract expressly provides for a hardship clause. It is possible to circumvent this shortcoming by invoking force majeure.

It is common practice in complex commercial contracts to include a force majeure clause. In the absence of such a clause, Ivorian law does not expressly recognise a legal right to renegotiation based on the theory of force majeure.

The Ivorian Civil Code is based on the principle of the binding force of agreements, so that without a specific clause, it would be difficult for one party to compel the other to renegotiate.

The rules governing guarantees and remedies in the event of non-performance, delay or poor performance of a contract are as follows.

Legal Guarantees

Ivorian law recognises several guarantees designed to protect the other party to the contract.

• Conformity guarantee – the goods or services delivered must correspond to what was agreed and be fit for the intended purpose. In the event of a defect, the customer may request repair, replacement, or reimbursement (Consumer Law No 2016-412).
• Hidden defects warranty – the seller is liable for any hidden defects that render the goods unfit for use or significantly reduce their value. The buyer may then obtain cancellation of the sale or a reduction in price (Article 1641 of the Civil Code).
• Eviction guarantee – the seller must ensure the buyer peaceful possession of the property and protect them against any claims by third parties.

Remedies

When a party fails to perform or improperly performs its obligations, several remedies are available:

• enforcement in kind – the judge may order that the obligation be performed as promised, possibly subject to a penalty;
• termination of the contract – in the event of a serious breach, the contract may be cancelled, terminating the reciprocal obligations and giving rise to a right to damages;
• default interest – in the event of late payment of a sum of money, interest shall accrue from the date of formal notice; and
• exception of non-performance – a party may suspend the performance of its own obligations until the other party has performed its obligations.

Under Ivorian law, the parties may make adjustments to the guarantees and remedies provided for. It is common to provide for:

• limitation of liability clauses capping the amount of damages;
• exclusive guarantee clauses restricting the nature or duration of certain guarantees; and
• penalty clauses setting in advance the amount of compensation in the event of non-performance.

All of this must be done in accordance with public policy rules and without the clauses providing for such adjustments being considered unfair.