Conclusiones de la pregunta de investigación P5

In Cameroon, contracts are classified into a number of categories following the traditional civil and common law patterns. And in classifying contracts the common and civil law use widely different terminology. Only an outline treatment will be undertaken here.

In Francophone Cameroon, the Civil Code classifies contracts according to certain characteristics that appear as dominant features, such as the existence or non-existence of reciprocity of engagement, the introduction of a certain chance that a certain event will or will not take place or that each of the parties has contemplated a counter-prestation by the other. Along this path, the established classification of contract under civil law has emerged as follows:

18 Some examples of transactions declared in the code to be contracts are: gifts inter vivos, accepted by the donee (art.755), sale (art. 1472), exchange (art. 1596), lease (1600), etc..

Synallagmatic (bilateral) and Unilateral;19 Commutative and Aleatory;20 Gratuitous and Onerous;21 and Nominate and Innominate.22

Such an elaborate classification is not known in Common Law Cameroon which, like other common law jurisdictions, has devoted little attention to the classification of contracts. For example, no distinction is made between commutative and aleatory contracts at common law. It has been said that this distinction could well be made at common law but for the fact that the notion of lesion, which explains the inclusion of this distinction in the Civil Code, is not known to English law.23 The common law also does not distinguish between onerous and gratuitous contracts. Only onerous contracts are considered as valid contracts because they fulfill the requirement of consideration. This does not mean that in Common Law Cameroon, gifts are not recognised or that the courts will not give effect to them. The point is that, like English law, gifts and promises are not considered as contracts. Rather they are considered as unilateral acts which are governed by certain well laid down rules and they are generally considered to fall under property law instead of contract law since their object is to transfer some property and not to create any obligations.

The most significant classification in common law is that which divides contracts into bilateral and unilateral.24 It will have been noticed that the civil law also makes

19 Art. 1102 -1103.

20 Art. 1104, this is also referred by some common law writers as ‘Dependent and Independent Obligations’, see Carter: Breach of C ontract, 1984, p .6.

21 Art. 1105 - 1106.

22 Art. 1107.

23 David and Pugsley: Les Contrats en Droit Anglais. 1985, p. 62.

24 Langdell, Sum m ary of Contracts, 248-253, 2d ed. 1880, is credited with having first enunciated this distinction. See Stoljar, Loc. cit.. note 25. Llewelyn, "O f the

a similar classification, yet it is important to point out that there is some terminological difference between common law and civil law with regards to the terms ‘unilateral’ and ‘bilateral’ as they relate to contracts. At common law, a unilateral contract is one in which there is a promise of performance by one party only, conditioned by the performance of an act by the other party.25 At civil law, the same term is used in a somewhat different sense - it refers to those contracts which typically produce legal obligations only on one party, e.g. a contract of donation.

The common law generally adopts a very simple classification of contracts which is unknown to civil law. In Anglophone Cameroon, contracts can be classified into contracts under seal and simple contracts, i.e. formal and informal contracts.

A contract under seal, sometimes referred to as a contract of specialty (e.g. a deed) is a written instrument to which a person attaches his seal, delivers it to another person and liability is thereby incurred under it by the person who fixes his seal. It is the form of the contract that secures its validity. Consideration, is not essential to the creation of a contract under seal. I do not know of any Cameroonian cases involving the formal validity of the sealed obligation but I suspect that Cameroonians have not only not had seals, they have not had or have not used wax as well. One can only assume that in Cameroon, the role of the sealed instrument is performed by other substitutes such as a written document that is duly notarized, i.e. drawn up by a solicitor or notary, or duly registered with the Department of Stamp Duty and Registration, for instance.26 In any case, this work is not concerned with formal

Good, True and Beautiful in the L aw " (1953) 69 L.Q.R. 485, 500, has suggested that Langdell formulated this distinction only to achieve some symmetry in the welter of contractual principles.

25 For some discussion of the unilateral contract of the common law, see Llewelyn, Our Case-Law o f Contract: Offer and Acceptance" (1938, 1939) 48 Yale L.J. 1, 779 passim; Stoljar "The False Distinction between Bilateral and Unilateral Contracts"

(1955) 64 Yale L.J. 515.

26 See chapter 7 below on formal requirements in contracts.

contracts.

A simple contract is an ordinary contract which may be written or oral. The essential requisite of a simple contract is that it must be founded on consideration.

The main characteristic of simple contracts is their foundation on agreement and consent. Unlike contracts under seal which may be quite unilateral in character, a simple contract is always bilateral. This study is in the main concerned with simple contracts. For the purpose of this thesis, therefore, the most important civil law category is that of the synallagmatic contract. This is a contract which is not only bilateral (in the sense that each party undertakes an obligation) but has the characteristic that the performance promised by one party is to be exchanged for another.