Commercial Contracts 2025 Comparisons

Under Moroccan law, the determination of the applicable law of a commercial contract follows general principles of private international law, combining the parties’ autonomy with limits imposed by public policy and mandatory rules.

The parties are free to choose the law governing their contractual relationship.

In the case of a foreign element, and in the absence of an express choice by the parties, the courts assess elements relating to the place of conclusion of the contract, or the place where the contractual obligations are to be performed, to identify the law with the closest and most real connection to the contract. Even when a foreign law is chosen as the applicable law, the contract’s stipulations must adhere to mandatory provisions of Moroccan law if they are to reflect public policy or economic sovereignty. This is the case for consumer, banking and insurance contracts, where protection of consumers’ rights justifies the primacy of Moroccan public policy.

In summary, the applicable law of a commercial contract in Morocco is primarily determined by the parties’ express choice – failing which, it is the law most closely connected to the contract. However, this autonomy is limited by mandatory Moroccan rules and public policy considerations, which may override the chosen law when the contract has substantial connections with Morocco.

Under Moroccan law, commercial contracts are generally valid whether concluded orally or in writing, as long as the essential elements (consent, lawful purpose and a determinable object) are present – except when the law expressly requires written form, for banking contracts and insurance policies, suretyship, real estate contracts or business transfers (sale or transfer of a business, transfer of undertakings, transfer of assets and liabilities). However, written contracts are the norm in commercial practice, and electronic contracts are legally recognised.

In Morocco, commercial contracts are primarily governed by:

• the Moroccan Obligations and Contracts Code, which provides general contract rules, including on formation, performance, breach and remedies;
• the Moroccan Commercial Code, which contains rules specific to commercial acts, merchants, commercial companies, commercial leases, bills of exchange and guarantees;
• specific sectoral laws, such as Law No 31-08 on consumer protection, Law No 15-95 on commercial leases, and banking and insurance laws; and
• international conventions ratified by Morocco, which include the United Nations Convention on Contracts for the International Sale of Goods (CISG) (if applied), UNIDROIT Principles, etc, in the case of international sales.

The main differences between Moroccan sales law and the CISG arise in terms of scope, formal requirements, remedies and risk allocation. Moroccan sales law applies primarily to domestic contracts and can also cover business-to-business (B2B) and business-to-consumer (B2C) transactions, whereas the CISG applies to contracts between parties in different countries that are signatories, unless expressly excluded.

Regarding form, Moroccan law generally allows oral or written agreements, subject to certain statutory exceptions, while the CISG also permits oral or written contracts but has specific provisions for contract formation and proof.

Conformity of goods under Moroccan law requires that goods meet contract specifications and implied quality standards, similarly to the CISG, though the CISG provides detailed definitions of conformity.

In terms of remedies, Moroccan law allows performance, rescission, damages and, in some cases, specific performance, whereas the CISG provides remedies such as specific performance, avoidance of the contract, price reduction and damages, with more structured rules for calculating damages.

The allocation of risk under Moroccan law generally passes at delivery, depending on the contract and commercial terms, while the CISG establishes specific rules for risk transfer, often linked to the delivery point or carriage obligations. Finally, good faith is a pervasive principle under Moroccan law, governing contract formation, performance and enforcement, while the CISG contains limited explicit references to good faith, relying more heavily on the express terms of the contract.

Under Moroccan law, franchise contracts are governed by general contract law rather than any specific legislation, and fall under the general rules and conditions for the validity of a contract.

However, depending on the content of the franchise, certain specific legal regimes may apply, such as:

• intellectual property law for the licensing of trade marks, know-how or trade names;
• competition law, particularly regarding exclusivity clauses and restrictions on competition; and
• commercial law, which may also apply if the franchise involves the operation of a fonds de commerce (business establishment).

Moroccan law includes certain mandatory rules for specific contracts, such as commercial leases. They must be in writing and follow the mandatory rules on renewal. Notice periods, termination clauses, etc, must also be included:

• commercial leases – must be established in written form and must follow mandatory rules on renewal, notice, termination, etc;
• employment contracts – are governed by strict labour law rules on minimum wages, working hours, social security contributions and termination procedures;
• banking and insurance contracts – are subject to consumer protection and financial disclosure requirements; and
• consumer contracts – must comply with mandatory disclosure and fairness obligations.

The most significant development in Moroccan commercial law in the past three years is the landmark ruling in Ynna Holding v Fives FCB by the Court of Cassation (October 2022).

This decision clarified the enforceability of arbitration clauses within corporate groups, firmly establishing that distinct legal personality is a matter of Moroccan public policy. The ruling effectively blocked the extension of an arbitral award to a parent company that had not expressly consented to the arbitration, overriding the “group of companies” doctrine prevalent in international practice. Consequently, the trend over the last 12 months has been a heightened requirement for contractual formalism from international investors. They can no longer rely on economic unity to bind Moroccan parent companies to arbitration; instead, they must secure express consent via direct signatures or formal guarantees, significantly increasing predictability for local holding companies.

Under Moroccan law, parties to a commercial contract are free to choose the law governing their contractual relationship. This principle of party autonomy is well established both in Moroccan law and through Morocco’s adherence to international conventions and comparative conflict-of-law principles.

However, this freedom is not absolute. If a foreign element is involved in the contract, the chosen law must not conflict with Moroccan public policy (ordre public marocain). Moroccan courts may therefore disregard a foreign law if its application would contravene mandatory domestic rules – for example, provisions relating to morality, social protection or economic public order.

When a contract does not specify a governing law, Moroccan courts determine the applicable law based on objective connecting factors, seeking the legal system most closely connected to the agreement. Generally:

• for sales contracts, the law of the seller’s main establishment applies;
• for service contracts, the law of the service provider’s principal place of business governs; and
• where all or most elements of the transaction are situated in Morocco, Moroccan law applies by default.

This approach aligns with the “closest connection” principle found in many modern private international law systems. Moroccan judges assess various factors – such as the place of signature, negotiation or performance – to identify the contract’s centre of gravity.

If foreign law is applicable but its content cannot be ascertained, Moroccan courts tend to apply Moroccan substantive law instead, ensuring predictability and compliance with local standards.

Finally, even where a valid choice-of-law clause exists, Moroccan courts may set aside foreign provisions that violate Moroccan public order. This safeguard typically arises in matters involving excessive interest, employment protections or restrictions on Moroccan immovable property.

However, contracts and deeds relating to property or company law matters must adhere to mandatory public policy rules.

In summary, Morocco’s conflict-of-law framework balances contractual freedom with the protection of public policy. Parties are free to choose the governing law of their commercial contracts; however, in the absence of such a choice, or in the event of conflict with Moroccan public order, Moroccan law will prevail as the law of the jurisdiction most closely connected to the contract.

Even if the contract specifies a foreign law to govern it, Moroccan courts may still enforce certain provisions of Moroccan law if those rules are considered public policy or legal requirements. This is the case for:

• consumer protection rules – if the contract involves a consumer, Moroccan mandatory consumer law cannot be waived, even if a foreign law is chosen;
• employment law – in employment contracts, mandatory rules on working conditions, wages or termination cannot be overridden by foreign law;
• commercial lease of local property, in which certain registration or tenant protection requirements must be respected;
• contracts relating to property, insurance and banking, which must adhere to mandatory public policy rules; and
• competition law, anti-corruption rules or tax obligations, in which Moroccan law may still apply regardless of the chosen law.

In these cases, foreign law cannot derogate from Moroccan mandatory rules, which will be applied to ensure compliance with local standards and public policy.

Under Moroccan law, parties to a contract are generally free to choose a foreign jurisdiction to govern their contractual disputes, even if one party is Moroccan. This is part of the principle of party autonomy, which is recognised in commercial matters. However, there are some important limitations.

• Mandatory Moroccan rules still apply, especially regarding public policy, consumer protection, employment, competition, tax and commercial lease rules. A foreign law or jurisdiction cannot override these mandatory provisions.
• Jurisdiction clauses must be expressly agreed upon. Moroccan courts will generally respect a valid choice of forum, provided it does not contravene Moroccan public policy.
• If the chosen foreign jurisdiction is considered inconvenient or unfair to the Moroccan party, Moroccan courts may decline to enforce it.

In practice, it is common in international commercial contracts involving Moroccan parties to select foreign law (eg, French or English law) and a foreign forum for arbitration or court disputes, while still being mindful of Moroccan mandatory rules.

If all the parties to the contract are Moroccan nationals, yet the contract is linked to a foreign jurisdiction (whether through its place of formation or the location of performance), the parties may agree to submit any disputes to a foreign court.

If one or both parties to a contract is from the Moroccan jurisdiction, the parties can still agree on arbitration, as it represents an alternative dispute resolution method that is recognised by Moroccan law. Arbitration can be implemented either through an arbitration clause that was initially included in the disputed contract or through the establishment of an arbitration agreement when the dispute arises.

The parties’ agreement to submit disputes to arbitration – whether through an arbitration agreement or an arbitration clause – deprives local courts of jurisdiction to rule on the merits of the dispute subject to arbitration, or to adjudicate the dispute subject to arbitration. This exclusion of jurisdiction remains in effect until the completion of the arbitral proceedings or the annulment of the arbitration agreement, even if the dispute has not yet been referred to an arbitral institution.

However, Moroccan courts do not declare their lack of jurisdiction ex officio. It is incumbent upon the defendant to invoke the arbitration agreement and request the court’s lack of jurisdiction before the court rules on the merits of the case.

Moreover, foreign arbitral awards are enforced in Morocco provided they do not violate Moroccan and/or international public policy.

Furthermore, the competent Court of Appeal shall automatically annul the arbitral award if it finds that it contravenes public policy in the Moroccan jurisdiction, or if the subject matter of the dispute relates to a matter that cannot be submitted to arbitration (equivalent to Article V-2 of the United Nations 1958 Convention on the Recognition and Enforcement of Foreign Arbitral Awards (the “New York Convention”)).

While arbitration is valid and binding, Moroccan mandatory rules of public policy may still apply regardless of the chosen law. This includes local protections such as distributor rights and labour or consumer law. Arbitral tribunals seated in Morocco, and Moroccan courts at the enforcement stage, may give effect to these rules where necessary to safeguard Moroccan public order.

Under Moroccan law, a contract can be validly concluded in various forms, including orally, in writing, electronically or through conduct that demonstrates the parties’ mutual consent. While most contracts are enforceable regardless of form, certain types of agreements – such as real estate transactions, company incorporation documents or surety contracts – must comply with formal requirements (including notarisation, registration or other official documentation) to be legally effective. Written or electronic contracts are generally preferred as they provide clear evidence of the parties’ obligations and facilitate enforcement.

Under Moroccan law, while the term culpa in contrahendo is not expressly used, its underlying principle is recognised through general doctrines of good faith and tortious liability. Accordingly, even if no contract is ultimately concluded, a party may incur liability where it:

• engages in negotiations in bad faith;
• abruptly withdraws from negotiations without legitimate reason; or
• provides misleading or inaccurate information.

If such conduct causes damage to the other party, the injured party may seek damages to compensate for the loss suffered (typically covering negotiation expenses or loss of opportunity, but not the profits that would have arisen from the unfinalised contract).

Under Moroccan law, the standard terms and conditions of one party may be incorporated into a commercial contract if the other party has been clearly informed of their existence and has accepted them. This usually requires that the terms be expressly referred to in the main contract or offer, and that the other party has had the opportunity to review them before agreeing. If these requirements are not met, such terms may be deemed unenforceable.

Under Moroccan law, the enforceability of standard terms is governed by the general principles of contract law, relating to consent, good faith and fairness.

Standard terms become binding only if they were clearly communicated and accepted by the other party before or at the time of contract formation. Any clause that was not brought to the attention of the other party, or that creates a significant imbalance between the parties’ rights and obligations, may be considered unenforceable.

Standard terms are enforceable under Moroccan law only if they are clearly communicated, accepted and fair. Otherwise, they may be set aside in favour of the general principles of consent and contractual equity.

If standard terms create a significant imbalance between the parties or were not properly disclosed, they may be considered unenforceable. This principle is especially relevant in adhesion or consumer contracts, where Moroccan courts may intervene to ensure fairness and protect the weaker party.

Moroccan courts also apply the general rule that ambiguous or unclear clauses are interpreted against the party that drafted them.

If the contract is ambiguous, in the case of a foreign element, the court will rely on factual connecting factors (such as the place of performance or the place where the contract was formed) to determine which law or jurisdiction has the closest connection to the contractual relationship.

In the case of conflicting standard terms, only the clauses expressly accepted by both parties are binding. Conflicting terms are generally disregarded and replaced by the default provisions of Moroccan contract law.

Under Moroccan law, certain commercial contracts require specific formalities to be valid or enforceable – such as real estate transfers, long-term leases or security agreements – which must be executed before a notary or bear authenticated signatures. Most other commercial contracts can be concluded in writing without such formalities.

Electronic signatures are recognised under Law No 53-05 on the electronic exchange of legal data as having the same legal value as handwritten signatures, provided they are issued through an accredited certification service provider authorised by the National Telecommunications Regulatory Agency (ANRT). When these conditions are met, an electronic signature (eg, via DocuSign) has the same legal value as a handwritten signature.

Under Moroccan law, registration or filing is mandatory for certain types of contracts, such as the following:

• real estate leases exceeding three years should be registered with the Land Registry;
• transfers of business (fonds de commerce) should be registered in the Trade Registry and published in the official national bulletin and local newspapers;
• pledges or security interests should be registered in the relevant public register;
• company incorporation documents and amendments should be filed with the Trade Registry; and
• contracts relating to real estate, land or mortgages must be registered with the Land Registry – otherwise, they will not be enforceable by third parties.

Registration in these cases ensures enforceability against third parties and public notice of the transaction.

Under Moroccan law, mutual consent is essential for a contract to be effective, but the following additional requirements also apply.

• Capacity: the parties must have the legal capacity to enter into a contract (eg, minors or persons under guardianship may be restricted).
• Legality of object and cause: the subject matter of the contract and its purpose must be lawful. Contracts with illegal or immoral objects are void.

Furthermore, compliance with formalities (eg, written form, notarisation or registration) is essential for certain contracts to be enforceable. This applies to real estate sales, long-term leases, company incorporation and security interests, for example.

Moreover, Moroccan law imposes certain general principles that must be complied with during the negotiation and performance of contracts, such as the duty of good faith.

B2B contracts are primarily governed by general contract and commercial law, offering high flexibility for the parties involved, provided they comply with the applicable provisions of competition law. No specific law governs B2B commercial relationships, other than the Dahir of Obligations and Contracts (DOC) and the Commercial Code, for the following commercial contracts:

• pledging;
• commercial agency;
• brokerage;
• commission;
• leasing;
• transport;
• banking contracts; and
• domiciliation.

Moroccan legislation aims to secure and strengthen the rights of the weaker party (in this case the consumer) by ensuring that B2C contracts – which involve two parties that are financially unbalanced – are fairer for the consumer.

The main legal framework comprises:

• Law No 31-08 on consumer protection;
• Law No 09-08 on personal data protection;
• Law No 103-12 on credit institutions, which grants Bank Al-Maghrib the power to protect bank customers, particularly with regard to transparency and complaint management; and
• Law No 17-99 establishing the Insurance Code.

Under Moroccan Law No 31-08 on consumer protection, B2C contracts must respect the following main consumer rights.

• Right to information – consumers must receive clear, accurate and complete information on the product or service (price, characteristics, quantity, quality, seller identity, delivery terms, warranties).
• Right to safety – products and services must be safe. The trader or producer is liable for damages caused by unsafe products.
• Right to fair contract terms – contracts cannot include abusive or unfair clauses that create an imbalance between the consumer and the seller. Clauses violating consumer rights are void.
• Right to warranty – consumers are entitled to a legal warranty for non-conforming or defective goods, including repair, replacement or refund.
• Right of redress – consumers can seek remedies for defective products or services, including compensation for damages.
• Right of withdrawal – for certain contracts (eg, distance or door-to-door sales), consumers can cancel within a cooling-off period without penalty.
• Protection against misleading or aggressive practices – false advertising, misleading information or coercion is prohibited.
• Right to collective action – consumer associations can act on behalf of consumers to claim compensation or enforce rights.

These rights are mandatory, and any clause attempting to circumvent them is invalid under Moroccan law.

In Moroccan law, the core concept of liability is based on the obligation to repair damage caused to another person, whether arising from a contract or from a wrongful act (tort). There are two main types of liability.

• Contractual liability when one party fails to perform, delays or improperly performs an obligation arising from a valid contract. It requires:
1. a valid contract;
2. a breach of contractual obligation;
3. damage suffered by the other party; and
4. causal link between the breach and the damage.
• Tort liability when a person causes harm to another outside a contractual relationship. Any act causing unjustified harm to another obliges the person at fault to compensate the victim.

Liability in Moroccan law rests on three pillars:

• fault (faute);
• damage (préjudice); and
• causal link (lien de causalité) between the fault and the damage.

Punitive damages are not recognised under Moroccan law. The purpose of civil liability is to compensate the victim, not to punish the wrongdoer. Damages must therefore correspond strictly to the actual harm suffered.

As for the scope of compensation, Moroccan law allows recovery for:

• actual loss representing the direct material or moral damage suffered; and
• loss of profit representing the profits the victim could reasonably have earned if the harmful act had not occurred.

However, compensation is limited to foreseeable and direct damages resulting from the breach or wrongful act. There is no statutory cap on the amount of damages. Parties may agree on a lump sum amount, which the courts may subsequently reduce if it is deemed excessive.

Under Moroccan law, liability without fault (strict liability) is recognised in several cases. Liability is established even without proving fault, provided there is a casual link between the act and the harm.

The main categories include:

• liability for things under one’s control, such as damage caused by animals, buildings or objects; and
• liability for the acts of others, including parents for their minor children, employers for their employees and teachers for their pupils.

In all these cases, fault is not required – only the damage and a causal connection between the event and the harm must be proven.

Under Moroccan law, parties generally enjoy freedom of contract, meaning they can limit or exclude their liability through express contractual clauses, except in specific situations where such limitation would violate public policy. However, certain limits apply:

• a clause excluding liability for intentional misconduct (dol) or gross negligence (faute lourde) is null and void; and
• clauses that deprive a party of its essential rights or undermine good faith may also be invalidated.

Regarding standard terms, Moroccan courts are likely to interpret these strictly, especially if they were not clearly accepted or if they create a significant imbalance between the parties. Individually negotiated clauses, on the other hand, are more likely to be upheld, provided both parties understood and agreed to them freely.

Moroccan law provides relief from performance in circumstances outside a party’s control, even in the absence of a specific contractual clause.

A party may be released from its obligations if it proves that:

• the event was unforeseeable at the time of contracting;
• it was beyond the party’s control; and
• it made performance absolutely impossible, not merely more difficult or costly.

When these conditions are met, the debtor is exonerated from liability and the obligation is extinguished.

The affected party must also act in good faith, which includes:

• promptly notifying the other party of the occurrence of the event and its effects;
• taking reasonable measures to avoid or mitigate the consequences; and
• resuming performance once the impediment ceases, where possible.

Thus, Moroccan law recognises force majeure as a general principle, offering relief even if the contract is silent on the matter, provided these prerequisites are met – although courts interpret this concept very strictly.

It is standard practice for commercial contracts in Morocco to include a force majeure clause providing relief from performance in circumstances beyond a party’s control, expressly defining what constitutes a force majeure event (such as natural disasters, government actions or wars) and outlining the procedure for notification and suspension or termination of obligations. That said, the force majeure clause should be included within the definition of force majeure as set out in the DOC.

However, the absence of such a clause does not prevent a party from claiming relief under Moroccan law. This is because the principle of force majeure is already recognised under the DOC. In other words, even if the contract does not contain a force majeure provision, a party can still be released from liability if it proves that the event:

• was unforeseeable;
• was beyond its control; and
• made performance impossible.

Under Moroccan law, there is no general legal principle that automatically grants a party the right to amend or renegotiate a commercial contract on the ground of substantial hardship, when no specific clause exists.

The DOC is based on the principle of pacta sunt servanda (Article 230), and states that “legally formed agreements have the force of law for those who have made them and may only be revoked by mutual consent or for causes authorised by law”. This principle means that contracts remain binding even if performance becomes more difficult or costly, as long as it is not impossible.

That said, in the private commercial sphere, hardship is not recognised by default. The only way for a party to secure a right to renegotiate or modify the contract in the case of hardship is to include a specific contractual clause (a “hardship” or “renegotiation” clause).

It has become common practice for long-term commercial contracts to include a hardship clause allowing the parties to renegotiate or amend the contract if unforeseen events substantially alter its economic balance.

However, Moroccan law does not recognise a statutory right of renegotiation in such situations. The principle of pacta sunt servanda requires contracts to be performed as agreed, even if performance becomes more onerous.

Therefore, in the absence of a hardship clause, a party cannot rely on Moroccan law to seek amendment or renegotiation due to hardship.

Under Moroccan law, the main warranties and remedies for non-fulfilment, late fulfilment or breach of contract are as follows.

• Specific performance (Article 255 et seq DOC), through which the creditor may demand that the debtor performs the obligation as agreed, unless performance has become impossible.
• Termination (Article 259 DOC): if the debtor fails to fulfil their obligations, the creditor may request termination of the contract, either judicially or automatically if a resolutory clause is included.
• Damages (Article 263–267), meaning that the injured party may claim compensation for direct losses and loss of profit resulting from the breach.
• Penalty clause (Article 264 DOC), through which parties may predetermine the amount of damages for non-performance or delay through a penalty clause, enforceable unless manifestly excessive or unfair.
• Interest for late payment: in commercial contracts, late performance involving monetary obligations can lead to the application of legal or contractual interest.
• Warranties: in contracts for sale or services, statutory warranties (such as the warranty against hidden defects) also apply to protect the buyer or client against defective or non-conforming performance.

Furthermore, the parties may include guarantees for the performance of obligations in the contract, in the form of real or personal securities agreed upon by the parties.

Under Moroccan law, parties to a commercial contract enjoy freedom of contract, which allows them to agree on warranties, remedies and limitations of liability, including deviations from the default provisions provided by law. However, modifications cannot circumvent mandatory legal protections or undermine core contractual obligations.