Under Senegalese law, parties to a commercial contract generally have the freedom to choose the law that will govern their agreement. This choice must be clearly expressed and will be respected by the courts, provided it does not conflict with mandatory legal provisions or Senegalese ordre public. If no choice of law is made, the applicable law will be determined based on factors such as the place of performance, the place of conclusion, or the parties’ principal place of business. Certain mandatory OHADA and Senegalese rules may apply regardless of the chosen law.

The form of a commercial contract according to the Senegalese Civil and Commercial Code (COCC) is governed by the principle of mutual consent, which means that an agreement would be formed solely by the exchange of consent between the parties, without any particular form (written or oral) being required for its validity, except in cases where the law provides otherwise (formalities for validity).

However, formalities of proof may be required for certain agreements to be effective, while other agreements require a formality of validity, such as a written document, to be valid.

Nevertheless, through certain cases, the law requires a specific form for the agreement to be valid. If this formality is not complied with, the agreement is considered null and void. This is the case, for example, with certain sales or other agreements that may require a written document or other formality to be valid.

The Senegalese COCC and the Uniform Act on General Commercial Law of 2010 (AUDCG) apply in Senegal.

• Form of contract:
1. Senegalese law – may require written form in some cases; and
2. United Nations Convention on Contracts for the International Sale of Goods (CISG) – no form requirement; contracts can be oral or implied.
• Contract formation:
1. Senegalese law – based on offer and acceptance under civil law principles; and
2. CISG – more detailed rules on offer, acceptance and revocation.

• Seller and buyer obligations:
1. Both require delivery and payment, but the CISG gives more precise rules on conformity and notice of defects.
• Remedies for breach:
1. Senegalese law – focuses on damages and specific performance; and
2. CISG – adds the concept of fundamental breach, allowing contract avoidance, price reduction or damages.

• Risk transfer:
1. Senegalese law – risk passes on delivery; and
2. CISG – risk passes when goods are handed to the first carrier.
• Interpretation and good faith:
1. Both use the principle of good faith, but the CISG emphasises uniform international interpretation.
• Party autonomy:
1. Senegalese law – some rules are mandatory (dispostions d’ordre publiques); and
2. CISG – parties can exclude or modify most provisions.

Senegalese law recognises party autonomy in commercial contracts, but mandatory OHADA provisions (eg, for agency, lease and public order rules) still apply and cannot be excluded by agreement. For example:

• commercial agency contracts – mandatory rules on termination notice and compensation;
• commercial leases – rules on duration, renewal and notice;
• contracts contrary to public policy or good faith – automatically void; and
• formal registration and accounting obligations for commercial acts under OHADA law.

In judgment No 56 of 5 June 2024, the First Civil and Commercial Chamber of the Supreme Court of Senegal decided to abandon the application of the Bocar Samba DIÈYE case law, which had held that a document signed by an illiterate person is only valid if they were assisted by certifying witnesses who informed them of the content and scope of their commitment. In the present decision, returning to its previous case law, the court considers that “if the illiterate person does not disclose their illiteracy or if this status is unknown to the notary, the use of certifying witnesses is not mandatory if it is proven that they were able to understand the nature and effects of their act”. This judgment allows for a partial derogation from Article 20 of the COCC, which offered total protection to illiterate persons in the field of commercial contract.

The choice of the applicable law is not subject to any specific rules in Senegal. Indeed, Article 42 of the Civil and Commercial Obligations Code enshrines the principle of freedom of contract for the parties. However, they must not, through specific agreements, infringe upon public order or morality.

If no applicable law is chosen in a commercial contract, the applicable law will be the law of the place of performance of the contract.

An overriding law will be applied by the local court of Senegal if a foreign law is chosen when it concerns a rule of public policy.

Under the freedom of contract established by the Senegalese legislation, a foreign jurisdiction can be chosen if one of the contract parties is from Senegal.

The parties can agree on arbitration if one or both of the parties to the contract is from Senegal, pursuant to contractual freedom.

A claim may be filed with the local court if it does not prejudice the merits of the case. Indeed, in accordance with Article 13 of the Uniform Act on Arbitration Law, the existence of an arbitration agreement does not prevent a state court, at the request of a party, in a recognised and justified emergency, from ordering provisional or protective measures, provided that such measures do not involve an examination of the merits of the dispute, for which only the arbitral tribunal has jurisdiction. Furthermore, the local court may rule on the merits of a claim falling within the jurisdiction of the arbitral tribunal if it is brought before it by another party and the other party does not raise the incompetence of the local court.

There are no specific provisions on mandatory local laws for the protection of a national contract party.

The validity and formation of a contract are governed by the COCC and the AUDCG. Therefore, to conclude a valid contract in Senegal, the following three conditions must be fulfilled.

• Consent of the parties – meaning the parties must enter into the contract freely, without being misled, coerced or subject to fraud.
• Legal capacity of the parties – the parties must not be under guardianship or conservatorship and must have the legal authority to enter into a contract (either personally or by proxy).
• A lawful and certain object – the subject matter of the contract must be definite, and the cause must be lawful – ie, not contrary to public order or good morals.

The form of the contract is not crucial – it may be oral or written, although written contracts are preferred as they provide greater legal certainty. Nevertheless, a written contract is mandatory in certain fields (notably in agreements with the state).

In cases of fault before the signing of the contract and during negotiations, the injured party may invoke the principle of civil liability, which provides that any act whatsoever of man that causes damage to another obliges the person by whose fault it occurred to repair it.

Based on this, a liability claim can be brought, provided the injured party can prove that:

• a fault occurred (eg, abrupt termination, bad faith, deception);
• the fault caused real damage; and
• there is a direct causal link between the fault and the damage.

In such cases, damages may be claimed in proportion to the harm suffered.

To be incorporated into the contract, the general terms and conditions must be discussed in advance and accepted by both parties. The aim is to ensure that the other party is aware of and agrees to these terms. Mutual consent is therefore required.

Senegalese law does not impose any specific form for their inclusion – they can be inserted as a clause, attached as an annex, or even considered the main contract.

The legislation applies once the contract is formalised between the parties, provided that the general terms and conditions were brought to the buyer’s attention in advance and accepted. In the event of a breach by the seller or another contracting party, sanctions may apply. These can range from contractual penalties to those provided by law, such as claims for damages, contract termination and refund of payments. These remedies can be cumulative.

In the absence of general terms and conditions, the AUDCG stipulates that the seller has three contractual obligations:

• delivery obligation;
• conformity obligation; and
• warranty obligation.

Standard clauses can be invalidated if they create a significant imbalance between the parties.

Under national law, a contract must reflect the mutual will of the parties. Therefore, if a contract has been signed in accordance with the conditions set out in 3.3 Standard Terms and Conditions, a clause is presumed valid even if unbalanced.

However, general terms and conditions are usually considered adhesion contracts. Accordingly, consumer protection law provides that any clause that creates a significant imbalance between the rights and obligations of the professional and the consumer may be declared void. This includes terms that limit the consumer’s legal rights, impose disproportionate penalties, or exclude the trader’s liability for defective performance. The assessment of unfairness takes into account the overall context of the contract and the clarity of the drafting.

Furthermore, an unbalanced clause may be nullified if it turns out that the injured party's consent was vitiated at the time of signing.

More generally, a clause must not impose excessive or vague obligations on the other party, and contracts must be entered into in good faith.

There are no specific rules governing conflicts between standard forms. However, the issue is addressed under general contract law principles.

General terms and conditions must be accepted by both parties and must not be contradictory. If conflicting terms are present, the most recently accepted version will prevail.

For legal certainty and in some cases for publicity purposes, the law requires certain contracts to be notarised (eg, company formation, transfer of business assets, transfer of shares). A notarial deed is mandatory because these contracts require registration and publication formalities.

For other contracts – such as sales between merchants or service agreements – a notarial deed is not required.

Electronic signatures are recognised in Senegal, provided certain conditions are met, notably that the signature is made via an approved platform.

Real estate sale contracts must be notarised without exception.

In addition to notarial acts, registration is required for contracts that affect the life of a company, such as:

• articles of incorporation;
• transfers of business assets;
• share transfers; and
• security agreements, etc.

These types of contracts must be registered with the competent authorities, particularly the Commercial and Companies Register (RCCM) and tax authorities.

In addition to mutual consent, the legal capacity of the parties and a lawful object (ie, not contrary to public order or good morals) are essential requirements for contract validity.

In Senegal, business-to-business (B2B) and business-to-consumer (B2C) contracts are governed by distinct legal frameworks reflecting the nature of each commercial relationship. B2B contracts are primarily regulated by the COCC and the AUDCG, which sets out general principles of contract law applicable to all commercial dealings. These contracts operate on the assumption that both parties possess comparable levels of expertise and bargaining power. The law therefore affords them broad freedom to negotiate terms, define obligations, and allocate risks as they see fit.

By contrast, B2C contracts fall under the scope of the Law No 2021-25 on Prices and Consumer Protection and related consumer legislation. These laws impose a set of mandatory obligations on professionals when contracting with consumers, recognising the imbalance that typically exists between traders and private individuals. The rules aim to safeguard the consumer’s right to fair information, transparent pricing, and protection from abusive contractual terms.

Businesses must therefore distinguish clearly between their commercial partners and their end users.

Practical Considerations

Businesses engaging with consumers in Senegal should ensure that their contractual documentation and marketing materials comply with these statutory requirements. This involves reviewing standard terms, ensuring transparent pricing, and implementing effective billing, complaint and refund procedures. For B2B contracts, companies retain wider discretion to negotiate terms, but should remain mindful of general contractual principles such as good faith, clarity and mutual consent.

A clear understanding of the distinction between B2B and B2C frameworks is essential to managing legal risk and maintaining commercial trust in the Senegalese market.

Senegalese consumer law is designed to ensure that consumers contract on a fair, informed and transparent basis. The law sets out a series of rights that cannot be waived by agreement and that every business must respect when dealing with consumers.

Right to Information

Before entering into a contract, the seller or service provider must give the consumer clear and comprehensible information about the goods or services offered. This includes their essential characteristics, the total price inclusive of taxes and charges, and the conditions of sale, delivery and payment. The information must be provided in a language that the consumer can reasonably understand. In online and distance contracts, these disclosures must be made available before any order is confirmed.

Right of Withdrawal

Consumers enjoy a statutory period during which they may withdraw from a contract without penalty or justification. This right applies in particular to distance and electronic sales, where the consumer cannot physically inspect the goods before purchase. Upon withdrawal, the trader must reimburse the consumer within a reasonable time. The period for withdrawal and refund procedures must be clearly stated in the contract or confirmation notice.

Protection Against Unfair Terms

Any clause that creates a significant imbalance between the rights and obligations of the professional and the consumer may be declared void. This includes terms that limit the consumer’s legal rights, impose disproportionate penalties, or exclude the trader’s liability for defective performance. The assessment of unfairness takes into account the overall context of the contract and the clarity of the drafting.

Quality, Safety and After-Sales Obligations

Goods and services supplied to consumers must meet minimum standards of quality and safety. Where a product proves defective or fails to conform to its description, the consumer has the right to repair, replacement or refund. Service providers are also expected to perform with due diligence and to honour any express warranties or guarantees given at the time of sale.

Enforcement and Remedies

Consumers may bring claims before the competent courts or seek assistance from authorised consumer associations. Regulatory authorities may also intervene to investigate complaints, order corrective measures, or impose financial penalties on non-compliant businesses. The law emphasises conciliation and mediation where possible, but serious infringements can lead to both civil and criminal sanctions.

Businesses must ensure that their contractual documentation and marketing materials comply with these statutory requirements to avoid legal repercussions and maintain consumer trust.

Civil liability is based on fault: a person is liable if they cause harm to another person through their behaviour. Fault can be defined as conduct that deviates from the rules of caution and diligence that a reasonable person would have followed in similar circumstances. It can be either intentional, when the perpetrator seeks to cause harm, or negligent, when they act recklessly or carelessly. The main rule in civil liability is that fault is the basis for liability. This means that for a person to be held liable for damage, there must be fault on their part. However, there is no fault if the perpetrator of the damage is unable to appreciate their actions due to their natural state (eg, mental disorder).

There are specific liability regimes, but fault remains the central principle. For example, in a contract, a debtor may be liable if they do not perform their obligation properly.

• For an obligation of result, they are liable as soon as the result is not achieved.
• For an obligation of means, they must prove that they have used all possible means to achieve the result. If the creditor proves non-performance, the debtor will be liable.

Under local law, compensation for damage is mainly provided through the award of damages, which aim to fully compensate the victim and restore them to the situation they would have been in had the damage not occurred. Judges may also order additional measures to limit the extent of the damage, provided that this respects the freedom of individuals and the rights of third parties. These measures may include specific remedial actions, such as the restoration of damaged property or the cessation of a harmful activity.

There is no maximum amount governing the payment of damages and interest provided for by law. In addition, the assessment of damages takes into account the totality of the harm, whether material, moral or physical. In the case of loss of earnings, for example, the amount of damages is adjusted according to the victim’s income over the three years preceding the event, based on their tax returns. This assessment is made on the date of the judgment or ruling, in order to take into account the evolution of the damage until the final decision.

If several persons contribute to the cause of the damage, they are jointly and severally liable, which means that they can all be held liable for the entire damage and can seek recourse against the other jointly liable parties to share the burden of compensation.

Local law provides for strict liability in several categories, including liability for animals and objects, as well as vicarious liability.

Liability for Animals and Objects

In this context, any person is liable for damage caused by an animal or object under their control. The concept of control is key here: it refers to the control or management of property (object) or an animal, whether used personally or through an agent (eg, an employee).

• The owner of the animal or object is in principle liable, even if they are not directly responsible for the incident. Control is established by direct use or through someone under their direction.
• If the owner entrusts the animal or object to another person, control may be transferred to that person.
• Liability is established as soon as the damage and control exist simultaneously. In other words, if a person has control over the animal or object and it causes damage, that person will be held liable.
• However, this liability may be mitigated or waived in cases of force majeure, if the damage is caused by the actions of a third party or by the fault of the victim themselves.

Liability for the Acts of Others

Liability for the acts of others means that a person is liable not only for damage caused by their own actions, but also for damage caused by persons for whom they are responsible. This includes several categories of persons.

• Liability of parents for their minor children – parents are liable for damage caused by their minor children living under their roof. This means that if a child causes damage, it is the parents, particularly the one who has custody of the child, who will be liable for that damage, even if they were not directly involved in the incident.
• Liability of principals (employers) for their employees – principals or employers are liable for the acts of their employees in the course of their duties. If an employee, under the authority of their employer, causes damage to a third party in the course of their work, it is the employer who will be liable, not the employee as an individual. Similarly, a legal entity (such as a company) will be liable for the acts of a person acting on its behalf under the same conditions.

Local law permits limitation of liability, but with restrictions, particularly with regard to the total elimination of liability, which is prohibited. The parties may limit the extent of the damage, but may not completely absolve themselves of their responsibilities.

Clauses limiting liability must be negotiated and must not result in a situation where one of the parties is completely exempt from its obligations, particularly in cases of gross negligence or wilful misconduct.

The nature of the clause (standard or negotiated) may influence its effectiveness. Standard clauses, which are often imposed, may be considered unfair, while individually negotiated clauses are generally more acceptable to the courts, provided they comply with public policy rules.

Senegalese law, in particular the COCC and the AUDCG, expressly provide for exemption from the obligation to perform in circumstances beyond a party’s control (cases of force majeure or unforeseeable events – Articles 128 and 129 of the COCC and 294 of the AUDCG), even in the absence of a specific contractual provision in the commercial contract.

To qualify as force majeure and benefit from an exemption, the event invoked must meet three cumulative criteria (or characteristics) within the meaning of Article 129 of the COCC. The event must be solely external, unavoidable and impossible to foresee. The same applies to Article 294 of the AUDCG, which defines force majeure as any impediment beyond one’s control and which cannot reasonably be foreseen in terms of its occurrence or consequences.

It is very common for commercial contracts in Senegal (as in most civil law jurisdictions) to include a force majeure clause.

The absence of a force majeure clause in the contract does not prevent a party from invoking local law, as these provisions in the Senegalese and OHADA legislation are d’ordre public.

It is common for commercial contracts to include clauses providing for modification or renegotiation in the event of significant difficulties.

The absence of such a clause restricts the parties’ ability to assert their rights insofar as, under the principle of the binding force of contracts provided for in Article 96 of the COCC, legally formed contracts are binding on those who created them.

However, the parties may, by virtue of contractual freedom, decide to renegotiate or amend the contract if they agree. This is the case with Article 186 of the COCC, which provides for a sliding scale clause allowing the parties to set an amount owed by one of them by linking it to an index (eg, the price of raw materials or services), provided that this index has a determinable value and is directly related to the activity or economy of the contract.

It is very common to see clauses which provide for some form of amendment or right of renegotiation in the event of substantial hardship to one of the parties. This is particularly the case in commercial contracts, leases, concessions, or even commercial contracts under administration.

The absence of such a clause could prevent the invocation of a statutory right to renegotiate or amend the contract if one of the parties refuses to apply it. However, it should be noted that a judge has the power to interpret the contract when the clauses are obscure or unclear in accordance with Articles 99 to 103 of the COCC.

Warranties

• Warranty of conformity – for example, in sales, the goods must conform to the description, quality and specifications in the contract.
• Warranty against defects (hidden defects/vice-caché) – the seller is liable for latent defects that make the thing sold unfit or diminish its use in a serious way, even if these were not apparent.
• Warranty of eviction – the seller must deliver goods free of claims by third parties.

Remedies

The following are the remedies available under Senegalese law/OHADA in cases of default, delay or breach of terms. Nevertheless, usually a mise en demeure (formal notice) is required; the defaulting part must be put in default (en demeure) before triggering remedies.

For late fulfilment after the formal notice, the creditor notably can:

• apply interest on arrears (intérêts moratoires) from when the debtor is in default;
• trigger the clause pénale – the contract may stipulate a fixed penalty or damages for delay or non-performance. Generally, the creditor applies the legal rate (taux legal); or
• may terminate the contract if the delay is essential or after additional time has been granted, or demand specific performance.

For non-fulfilment, after a formal notice, the creditor notably can ask for:

• specific performance (exécution forcée) – ordering the breaching party to perform as contracted. Senegalese law allows for enforcement or carrying out of a court order, where possible;
• reduction of obligations – eg, reduction of price proportional to defect/non-conformity.
• obligation on seller to bring goods into conformity (repair or replacement) free of charge when feasible; or
• if essential breach, resolution of sale, restitution of price paid, etc.

The non-defaulting party may ask before the court for the termination or resolution of the contract (résolution judiciaire). This releases parties from future obligations; resolution has retroactive effect (means parties must restitute what they have received) except in some respects regarding third parties. It can also ask for compensation for losses including actual loss, lost profits and an astreinte (judge may impose a daily fine until performance).

In commercial contracts, the parties generally have broad freedom to adjust the warranties and remedies provided in the agreement. They may modify, limit or exclude certain warranties, provided that such deviations are clearly expressed and comply with the applicable law. However, this freedom is not absolute and may be limited by mandatory legal provisions, unfair terms, or cases of serious breach.