In the Democratic Republic of the Congo (DRC), the determination of the law governing a commercial contract is primarily based on the principle of contractual freedom. Parties are free to choose the law that will govern their agreement – whether Congolese law or a foreign law. This flexibility enables them to tailor the legal framework to the specific nature of their transaction, particularly when it involves cross-border elements.

Principle of Freedom of Form of Commercial Contracts

Commercial contracts in the DRC are, in principle, subject to freedom of form, unless a specific regulation provides otherwise. Most contracts are therefore valid regardless of whether they are written or oral. However, a written form is strongly recommended, as it facilitates proof of the contract’s existence and content. An oral contract is valid as soon as mutual consent is established.

Exceptions Requiring Written Form

Certain regulated contracts – such as insurance contracts, security agreements or leasing arrangements – must be in writing to be legally valid. In such cases, the absence of a written document may prevent the contract from producing legal effects or make specific clauses unenforceable.

Evidentiary Requirements

Under Articles 217 and following of the Decree of 30 July 1888 on Contracts and Conventional Obligations, any debt or undertaking exceeding 2,000 Congolese francs must be evidenced in writing (either as an authentic act or under private signature) to be admissible before a court. Therefore, although a written form is not always a condition of validity, it becomes essential for evidentiary purposes where the value of the transaction exceeds this threshold or where the law expressly requires it.

Main Applicable Legislation

Commercial contracts in the DRC are primarily governed by:

• the Constitution of 18 February 2006 (as amended and supplemented);
• the Decree of 30 July 1888 on Contracts and Conventional Obligations; and
• the Uniform Act of the Organization for the Harmonization of Business Law in Africa (OHADA) on General Commercial Law.

Sector-specific legislation may also apply, notably in banking, insurance, mining, telecommunications and energy.

Differences From the United Nations Convention on Contracts for the International Sale of Goods

The key distinction between Congolese law and the United Nations Convention on Contracts for the International Sale of Goods (CISG) lies in their respective scope and level of detail.

Under Congolese law, as harmonised through the OHADA system, commercial sales are mainly governed by general principles applicable to transactions between merchants operating within OHADA member states. This framework primarily regulates sales concluded or performed within the region and reflects a civil law approach emphasising good faith, delivery, payment and risk transfer.

The CISG, by contrast, is specifically designed for international sales of goods between parties whose businesses are located in different states that are signatories to the CISG. It may also apply when both parties are from non-signatory states but have chosen the law of a country that has adopted the CISG. In such cases, the CISG provides a neutral and predictable legal framework for cross-border transactions.

Substantively, the CISG adopts a more modern and detailed approach than domestic or OHADA law. It sets out clear rules on contract formation, conformity of goods, remedies for breach, calculation of damages – including loss of profit – and the transfer of risks. While OHADA law aligns with several of these principles, its provisions remain more general and regionally focused, whereas the CISG aims to standardise trade practices internationally and reduce uncertainty arising from differences in national legislation.

The DRC does not have specific legislation governing franchise agreements, unlike many US jurisdictions. However, several categories of contracts are subject to mandatory rules. These include leases, electricity sales contracts, mining title assignments and leases, insurance contracts, leasing (credit-bail) agreements, and contracts involving security interests.

These mandatory provisions aim to ensure legal certainty and protect public interests in regulated sectors.

Over the past three years, the legal framework governing commercial contracts in the DRC has evolved primarily through institutional and procedural reforms rather than through landmark court decisions.

A major development has been the adoption of the OHADA Uniform Act on Simplified Recovery Procedures and Enforcement Measures, adopted on 17 October 2023 and effective from February 2024. This reform seeks to modernise and harmonise debt recovery and enforcement mechanisms across OHADA member states, including the DRC. It enhances creditor protection, simplifies enforcement proceedings, and strengthens the overall efficiency and predictability of commercial dispute resolution.

At the national level, Law No. 23/061 of 10 December 2023 amending the Commercial Courts Act introduced several important procedural and structural innovations. The reform notably:

• shortened procedural timeframes to expedite the resolution of commercial disputes;
• provided that consular judges – who represent the business community – are now remunerated by the Public Treasury, reinforcing their independence;
• extended the jurisdiction of commercial courts to include enforcement-related disputes;
• introduced simplified procedures for small claims to improve access to justice for smaller businesses; and
• initiated the digitalisation of judicial processes, paving the way for more transparent and efficient case management.

Together, these reforms reflect a broader trend towards the modernisation and professionalisation of commercial justice in the DRC, aiming to enhance the reliability of contract enforcement and to improve the business climate.

During the past 12 months, there have been no additional major legislative or judicial developments directly affecting commercial contract law. However, the ongoing implementation of these reforms demonstrates a sustained commitment to legal modernisation, procedural efficiency and stronger investor confidence in the Congolese commercial justice system.

Freedom of Choice

Parties to a commercial contract in the DRC enjoy broad contractual autonomy and may freely determine the law governing their agreement. This freedom allows them to choose the most suitable legal framework for their commercial relationship, provided that the chosen law does not contravene overriding laws.

Absence of a Choice of Law

In the absence of an express choice by the parties, Congolese courts generally apply either the law of the place where the contract was concluded or that of the place of performance, depending on which has the closest connection to the transaction.

Article 234(2) of the OHADA Uniform Act on General Commercial Law introduces a complementary principle aimed at ensuring uniformity within the regional legal space. It provides that, when a commercial sale is concluded between parties whose principal establishments are located in OHADA member states, the OHADA Uniform Act automatically governs the contract, even if no express choice of law has been made. The same applies when conflict-of-law rules designate the law of an OHADA member state as applicable.

This mechanism reinforces legal predictability and regional coherence by extending the reach of OHADA law to cross-border commercial transactions within its jurisdiction, thereby reducing uncertainty and fostering confidence in intra-African trade.

Even when a foreign law has been chosen, Congolese courts will apply mandatory or overriding local laws in matters governed by public policy or order. Judges cannot apply foreign law to issues falling within the scope of such overriding provisions.

One Party From the DRC

Where one party is domiciled in the DRC, the parties may still agree to submit disputes to a foreign court. The principle of contractual freedom allows them to designate a foreign jurisdiction for dispute resolution.

Both Parties From the DRC

Similarly, where both parties are based in the DRC, they may choose a foreign jurisdiction. Such a clause is valid provided it does not contravene mandatory procedural or public policy rules.

Agreement to Arbitrate

Parties may agree to resolve commercial disputes through arbitration by including an arbitration clause (clause compromissoire) in their contract. Even if no clause was initially included, the parties may subsequently agree to arbitrate once a dispute has arisen, through a written arbitration agreement (compromis).

Effect on Judicial Jurisdiction

Under Congolese law, a valid arbitration agreement excludes the jurisdiction of national courts. Once such an agreement exists, any court seized must decline jurisdiction, in accordance with Article 13(1) of the OHADA Uniform Act on Arbitration and the principle electa una via non datur recursus ad alteram.

Recognition and Enforcement of Foreign Awards

An international arbitral award rendered abroad is enforceable in the DRC only after obtaining an exequatur from the competent court. The court’s review is limited to verifying formal regularity and compliance with Congolese public policy, in line with Article V(2) of the 1958 New York Convention.

The party seeking enforcement must produce the original award and arbitration agreement, or certified copies thereof. If these documents are not in French – the official language of the DRC – they must be accompanied by a certified translation by a court-appointed expert translator, as required under Article 31 of the OHADA Uniform Act on Arbitration.

Protection of Domestic Contracting Parties

The DRC does not have specific legislation granting special protection to distributors or similar intermediaries. However, distributors may rely on general principles of Congolese civil law, such as good faith and contractual liability, to protect their legitimate interests.

Under Congolese law, commercial contracts are generally subject to freedom of form, unless a specific statute provides otherwise. Most commercial agreements are valid without being in writing; a written document mainly serves as evidence of the contract’s existence and terms.

An oral agreement is therefore enforceable once mutual consent has been clearly expressed, although written form is strongly recommended to avoid evidentiary disputes.

The concept of culpa in contrahendo is not expressly recognised under Congolese contract law. Nevertheless, the general principle of civil liability for personal fault applies. Accordingly, a party that suffers harm as a result of the other party’s wrongful or negligent conduct during contractual negotiations may seek damages before the competent court, on the basis of the Civil Code.

Moreover, contractual liability may arise where one party fails to perform or breaches its pre-contractual undertakings, in accordance with the principle that agreements are binding upon the parties as the force of law. However, for liability to be established, there must be evidence of a binding commitment or obligation undertaken by the party in question.

For one party’s standard terms and conditions to be incorporated into a commercial contract, they must be communicated to and accepted by the other party. Without such acceptance, they are not binding. In practice, these terms are typically shared during the negotiation stage – through a memorandum, a draft agreement or another preparatory document – and accepted when the counterparty signs the contract, often preceded by the statement “read and approved”.

Acceptance may also be inferred from conduct consistent with the proposed terms.

Congolese law applies to standard terms whenever those terms conflict with mandatory local provisions. Even when one party seeks to impose its own conditions, these cannot override public policy rules or statutory protections. Consequently, any clause contrary to such rules will be deemed inapplicable or null.

In the DRC, standard terms may be invalidated when they create an unreasonable disadvantage or a significant imbalance between the parties. This principle is closely related to the notion of “lésion”, which occurs when one party exploits the other’s vulnerability – such as economic need, inexperience or ignorance – to obtain terms that are manifestly disproportionate to the value of the performance provided.

Congolese law allows the courts to annul or revise such clauses when they lead to excessive obligations or unfair enrichment. For instance, in credit or loan agreements, if a creditor takes undue advantage of a debtor’s weakness or urgent needs to impose exorbitant interest or benefits, the judge may reduce the debtor’s obligations to a normal level.

This mechanism reflects a broader commitment to fair dealing and contractual balance in Congolese law. Even in commercial relationships, contractual freedom is tempered by the duty of good faith and the prohibition of clauses that undermine equity or public policy.

Congolese law does not expressly regulate the battle of forms, but it is resolved through general principles of contract formation under the Civil Code and the OHADA Uniform Act on General Commercial Law. When two parties exchange conflicting standard terms, the exchange is assessed under the rule that a reply modifying essential elements of an offer constitutes a counter-offer, not an acceptance. Accordingly, no contract is formed until the parties reach explicit agreement on the differing provisions. However, if the variations are minor, the contract may be deemed concluded under the original offer unless promptly contested.

Most commercial contracts in the DRC can be executed under private signature without notarisation. However, certain instruments – such as real estate sales, company incorporation documents, and contracts creating real securities (eg, mortgages or pledges) – must be notarised or registered for legal validity or publicity purposes.

Notarisation is also commonly used in practice to strengthen evidentiary value and prevent disputes.

Since the adoption of the Digital Code (Ordinance-Law No. 23/010 of 13 March 2023), electronic signatures are legally recognised and have the same effect as handwritten ones. In practice, however, the lack of fully operational digital certification authorities has limited their widespread adoption, particularly in the banking and administrative sectors, where original or notarised signatures remain preferred.

Most commercial contracts are valid once the parties have agreed on the essential elements – object and price – without any registration requirement. Nonetheless, registration or notarisation is mandatory for certain categories of contracts to ensure proof, enforceability or legal publicity. These include:

• contracts creating real securities, such as mortgages or pledges;
• company documents, including incorporation acts, by-laws and share transfers;
• commercial leases exceeding nine years; and
• assignments or leases of mining titles.

Beyond mutual consent, Congolese law requires compliance with four essential validity conditions for a contract:

• consent of the party undertaking the obligation;
• legal capacity to contract;
• a certain and lawful object as the subject matter of the obligation; and
• a lawful cause or purpose.

These requirements ensure that contracts are not only properly formed but also legally and ethically sound, consistent with public policy and the principles of Congolese contract law.

Congolese law does not draw a distinction between business-to-business (B2B) and business-to-consumer (B2C) contracts in terms of their general legal framework. Both types of contracts are primarily governed by:

• the Constitution of 18 February 2006 (as amended);
• the Decree of 30 July 1888 on Contracts and Conventional Obligations; and
• the OHADA Uniform Act on General Commercial Law.

However, particular attention must be given to compliance with Law No. 18/020 of 9 July 2018 on Price Freedom and Competition, which aims to ensure fair market practices and consumer protection.

This law guarantees freedom of pricing, allowing economic operators to set the prices of goods and services under fair and transparent conditions, while also safeguarding fair competition. It prohibits anti-competitive and unfair commercial practices, such as:

• abuse of dominant position, where a company exploits its market power to obtain undue advantage;
• artificial market positioning (triangular trade) aimed at gaining illicit profit; and
• illegal price fixing, when prices exceed legally regulated or authorised levels.

The law seeks to promote efficiency, transparency and fairness in commercial relationships by preventing restrictive practices and unjustified price increases. It also establishes rules for economic concentration control, ensuring healthy market competition.

The DRC does not have a single, comprehensive regulation dedicated to consumer protection. Instead, consumer rights are safeguarded through a range of sectoral laws and regulations. The principal instrument remains Law No. 18/020 of 9 July 2018 on Price Freedom and Competition, which indirectly protects consumers by regulating pricing and curbing abuse of market dominance.

Under this law:

• vendors and service providers (except liberal professions) must clearly inform consumers of prices through labelling, marking or other appropriate means;
• producers, wholesalers, importers and service providers must communicate their price lists and general terms of sale in writing to all resellers; and
• resale at a loss is prohibited, except for specific categories of perishable or seasonal goods, outdated products or clearance sales.

In addition to this general framework, sector-specific regulations reinforce consumer protection:

• In telecommunications, users are entitled to access electronic and postal communication services at reasonable prices and to receive fair, non-discriminatory treatment, quality service and transparent contractual information.
• In food and health, consumers must be provided with safe, high-quality products compliant with hygiene standards.
• Across all sectors, pricing transparency and truthful product information remain mandatory principles.

In the DRC, the principle of civil liability is anchored in Articles 258 and 259 of the Civil Code (Book III). Together, these provisions establish that any act by a person causing harm to another obliges the author to make reparation – not only for damage resulting from an intentional act but also for that caused through negligence or imprudence.

Accordingly, Congolese liability law is based on three essential elements:

• a fault (which may consist of an act, omission, negligence or imprudence);
• a damage suffered by another; and
• a causal link between the fault and the damage.

There are two principal forms of liability under Congolese law:

• Contractual liability, which arises from the breach of contractual obligations. Contracts validly formed have the force of law between the parties and must be performed in good faith. A party failing to perform its obligations, without lawful justification, may be required to compensate the loss sustained by the other party.
• Extra-contractual (tortious) liability, which applies outside contractual relations, when a person causes harm to another through fault, negligence or imprudence.

In both cases, the obligation to repair the damage arises regardless of whether the fault was deliberate or resulted from carelessness, underscoring the Congolese system’s broad conception of fault.

Congolese law does not recognise punitive or exemplary damages. Compensation is limited to actual, proven losses suffered by the injured party.

However, under the principle of freedom of contract, parties may include liquidated damages or penalty clauses to determine compensation in advance, provided these do not conflict with public policy or mandatory legal provisions.

There are no statutory limits on the amount of recoverable damages, but courts typically award compensation for direct and foreseeable losses, including loss of profit, where such damage is sufficiently proven.

Liability under Congolese law generally presupposes fault. Strict liability, or liability without fault, is not commonly recognised in commercial law.

An exception exists in the law of transport, as established by the OHADA Uniform Act of 31 July 2003 on the Carriage of Goods by Road, which creates a presumption of liability against the carrier for loss or damage to goods during transport. The carrier can only escape liability by proving that the harm resulted from:

• the act or fault of the consignee;
• instructions from the consignee;
• an inherent defect in the goods; or
• circumstances that were unavoidable and beyond the carrier’s control.

Parties may lawfully include clauses limiting or excluding liability, provided that such clauses do not infringe public policy or mandatory provisions of law.

However, these clauses are void if they attempt to exclude liability for fraud (dol) or gross negligence (faute lourde), or if they deprive the contract of its essential purpose.

When such limitations are included in standard contractual terms, they are enforceable only if clearly brought to the other party’s attention and expressly accepted. Clauses that are individually negotiated enjoy stronger legal standing.

Congolese contract law recognises force majeure as a ground for exemption from performance. A party is not liable for non-performance if it proves that an event beyond its control made performance impossible.

Force majeure typically requires three cumulative conditions:

• the event must be external to the debtor;
• it must be unforeseeable at the time of contracting; and
• it must be irresistible, meaning its effects cannot be avoided.

This principle is reflected in both the Decree of 30 July 1888 on Contracts and Conventional Obligations and the OHADA Uniform Act on General Commercial Law, which exempt a party from liability when performance is prevented by an uncontrollable event. The affected party must, however, prove the occurrence of such an event and take reasonable steps to mitigate its effects.

In practice, it is standard for Congolese commercial contracts to include a specific force majeure clause.

These clauses typically define the events considered as force majeure (such as natural disasters, war or government actions) and set out procedures for notification, mitigation, and termination or suspension of obligations.

Even in the absence of such a clause, Congolese law allows a party to invoke force majeure as a statutory defence, provided the legal criteria are met. However, expressly drafting a clause remains advisable for clarity and legal certainty.

The Civil Code (Book III) does not expressly recognise the theory of hardship or the doctrine of imprévision, under which a contract may be renegotiated if circumstances change drastically after formation.

Nonetheless, parties may voluntarily include a hardship clause in their contracts under the principle of freedom of contract. Such a clause allows renegotiation or adaptation of terms when unforeseen events make performance excessively burdensome.

If clearly drafted and mutually accepted, a hardship clause will be valid and enforceable before Congolese courts or arbitral tribunals.

Given the absence of a statutory hardship mechanism, it has become common practice for commercial contracts in the DRC to include such provisions.

The inclusion of a hardship clause ensures that the parties may renegotiate or adapt the contract to restore its economic balance in the event of significant changes. Without it, parties cannot rely on statutory law to obtain such relief, as Congolese law remains silent on the matter.

In the DRC, the legal framework governing warranties and remedies is primarily contractual. As per the Decree of 30 July 1888 on Contracts and Conventional Obligations, a contract has the force of law between the parties and must be executed in good faith.

In cases of non-performance, late performance or breach, the usual remedies include:

• a formal notice (mise en demeure) inviting the defaulting party to perform;
• negotiation or mediation to achieve an amicable settlement;
• arbitration or court proceedings where no settlement is reached; and
• where appropriate, the use of simplified recovery procedures, such as an injunction to pay or deliver, or direct enforcement through seizure where an enforceable title exists.

The remedies available may include specific performance, termination, and damages to compensate for the loss suffered.

The warranty and remedy provisions under Congolese civil law apply by default, but the parties may freely derogate from them through contract.

Under the principle of contractual freedom, parties may agree on their own mechanisms for warranty, limitation of liability or dispute resolution, provided such clauses do not contravene public policy or mandatory legal provisions.

Consequently, parties may adjust or exclude certain statutory rights and obligations, reinforcing the binding nature of the contract as the “law between the parties”.