It was mentioned in the previous section that one of the subjects discussed in Berlin was the freedom of commerce in the basin of the Congo. Accordingly, one of the requirements imposed on Leopold II was to establish, as soon as possible, a very efficient judicial organisation and adequate legislation in the Congo.106 As far as the judicial organisation was concerned, two texts were immediately enacted: the decree of 7 January 1886 relating to the organisation of justice in criminal matters;107 and the Ordinance of 14 May 1886 regulating the jurisdiction and procedure of civil and commercial courts.108
With regard to the civil legislative issue, on the other hand, the King was uncertain about whether it would be best to transpose Belgian laws into the Congo or adopt new regulations. In the French colonies, for instance, the Code Napoleon was immediately applicable. Without following the French option, Leopold II decided to enact new laws adapted to the Congolese situation. To achieve this, he appointed a drafting civil code commission composed of experienced Belgian lawyers. That commission later came to be known as the “Superior Council”.109 In the meantime, the Congolese General Administrator passed a “provisional civil code”
by Ordinance of 14 May 1886.110 As stipulated by its preamble, the Principles Applicable to Judicial Decisions Ordinance aimed “to determine temporarily rules to be followed in civil and commercial matters until special rules are promulgated.”111
106 See Kalongo Obligations 14.
107 See Lamy 1969 (Special No.) RJC 135 145.
108 See Ordinance of 14 May 1886 approved by Decree of 12 November 1886 BO187, as revoked by Article 199 of the Code of Civil Procedure Decree of 7 March 1960 (MC 1960 961).
109 Cf. Decree of 16 April 1889 BO 161, completed by the Decree of 21 March 1893 BO 245.
110 Principles Applicable to Judicial Decisions Ordinance of 14 May 1886; approved by Decree of 12 November 1886 (BO 1886188 and 189). Though enacted the same day, this Ordinance is different from the Ordinance dealing with the jurisdiction of civil and commercial courts above.
The Ordinance regulating civil procedure matters has been repealed by the 1960 Code of Civil Procedure, whereas the former is still in force.
111 Despite its apparent provisional character, the Principles Applicable to Judicial Decisions Ordinance continues, to be intensively invoked by the CSJ. See CSJ 8 July 2009 RC 2378 BA 2004-2009 TII 216; CSJ 18 August 2006 RC 1965 BA 2004-2004-2009 TI 304; CSJ 1st October 2005 RA 729 BA 2004-2009 TI 141; CSJ 15 September 2004 RP 2297 BA 2004-2009 TI 46; CSJ 24 May 2002
Article 1 of the Ordinance specifies that all matters not specifically regulated in Congolese law had to be resolved in conformity with local customs, general principles of law, and equity.112 To this we shall return in section 2.2.6 below.
When it came to the drafting process of the Congolese civil code, it was obvious that the Superior Council had Belgian law as a principal source of inspiration. Nevertheless, as it was intended to produce an original law for the country, the Council refused to transpose Belgian laws into the Congo. The Council created, as was said by Verstraete, “experimental legislation”.113 This opinion is in conformity with Mansco’s argument according to which, although African legal systems resemble the legal systems of their respective settler countries, it cannot be deduced that legal rules in African countries are merely copies of the laws of their mother countries.114 There are some important differences between them.
Concerning the Congo, in particular, its drafting commission took cognisance of the freshest civil codes of the time.115 It compared them with both the 1884 Laurent’s
RC 2438 BA2000-2003 143; CSJ 10 March 2001 RC 2003 BA2000-2003 69; CSJ 29 December 1993 RC 014/TSR BA 1990-1999 97. The CSJ’s view is even supported by a number of scholars who believe that that regulation has never been revoked. Among those scholars are Nkata Violation 45; and particularly Meli 2007-2008 (13-14) AJ 42; and Kifwabala 2009 (15) AJ 34 37. As stated by Meli,
L’Ordonnance du 14 mai 1886 sur les principes généraux du droit n’a jamais été abrogée. C’est donc de bon droit que la Cour Suprême de Justice continue à se referrer à cette Ordonnance qui n’est pas abrogée et qui, par ce fait, n’est pas un ancêtre illegalement vénéré par la Haute Cour.
(“The General Principles of Law Ordinance of 14 May1886 has never been repealed. It is, therefore, right that the CSJ continues to referrer to this Ordinance which still remains in force, and which, accordingly, is not an ancestor illegally venerated by the Supreme Court.”) Such is also the opinion of Kifwabala who confirms that the application of 1886 Ordinance by the CSJ is consistent with the law in force in the DRC.
112 For the meaning of the concept “legal custom”, see CSJ 2 July 2006 RC 2244 Monge Ngele v Mbaka Mabako BA 2004-2009 TI 221.
113 Verstraete Personnes 13.
114 Mansco 2006 (5) 2 JI TR LP 55 57.
115 To illustrate this, the Land law uses the mechanism of the Australian Torrens Act of 2 July 1858;
see Verstraete Personnes18; Dévaux 1966 (42) RJC 195 200. With regard to the cut-off period for notice of non-conformity in the goods delivered, moreover, it is possible that it is the Italian 60-day limitation period that inspired the Congolese legislator. As it is stated by Article 1667 (2) of the Italian Civil Code, “The customer shall, under penalty of forfeiture, notify the contractor of non-conformity or defects within 60 days from discovery thereof. The notice is not necessary if the contractor acknowledged such non-conformity or defects or concealed them.” (English translation by Beltramo et al Civil code 76). Compare this to Article 325 CCO in which, “Proceedings resulting
draft and the works of the 1889 Belgian reform civil code commission.116 As a result of this, the commission produced a new law adapted to the needs of the country,117 although it was inspired by Belgian law.
Forced by the need to secure free trade in the basin of the Congo as required in Berlin, the Council gave priority to the Law of Obligations. On 30 July 1888, it decreed the Book relating to Contracts or Conventional Obligations,118 prior to those of Persons and Property adopted in 1895119 and 1912120 respectively. Similarly, pursuant to Article 3 of the Berlin General Act, the Congo Free State had to assure to the citizens of the Berlin powers a large enjoyment of their civil rights. To this end, the King published a decree about the status of foreigners in the Congo on 20 February 1891.121 That statute was integrated into the Book of Persons four years later under a special Title dedicated to the Status of Foreign Nationals.122 The Decree of 20 February 1891 purported to protect economic interests of foreigners in the Congo; it still constitutes the basis of Congolese PIL rules.123
When Belgium annexed the Congo in 1908,124 a problem arose about the application of the legislation of the mother country in the colony. Fortunately, the
from redhibitory defects must be sued at latest within a period of 60 days, non-included the day fixed for delivery.”
116 Those reforms failed, however, in Belgium.
117 Verstraete Personnes 13.
118 Decree of 30 July 1888 relating to Contracts or Conventional Obligations (BO 1888 109).
119 See the Civil Code of Persons Decree of 4 May 1895 (BO1895 138), as revoked by the Family Code, Law No. 87-010 of 1 August 1987 (JO Special No. 1 August 1987).
120 See Decree of 31 July 1912 relating to things and the different modifications of the property BO 1912 386, as revoked by the Land Law No. 73-021 of 21 July 1973 as amended by Law No. 80-008 of 18 July 1980 (JO Special No. 1980 reedited on 1 December 2004).
121 PIL Decree of 20 February 1891 integrated in the Civil Code of Persons Decree of 4 May 1895 (BO 1895140).
122 Though the Book of Persons has, from 1987, been expressly repealed by the CFC, its Title II dealing with the Status of Foreign Nationals remains in force up to the present time. (Cf. Article 915 CFC; see also Kandolo Privé 81).
123 See Verstraete (Personnes 15) who says that the Congolese PILD marked an enormous progress on the Belgian civil code which, at that time, contained only sporadic principles of conflict-of-laws rules.
124 Following the annexation, the previous “Superior Council” was replaced by a new institution named as the “Colonial Council” assigned to examine decree proposals prepared by Colonies Departments, other than civil law statutes, particularly the law of obligations, which were kept intact.
Belgian Constitution had already rejected all attempts at legislative unification in its colonies through the first sentence of Article 1 al. 4, which stated that colonies had to be governed by particular laws.125 This rule was scrupulously followed by the Congolese “Colonial Charter” of 18 October 1908.126 Article 1 of this Colonial Charter specified that, “The Belgian Congo has a personality distinct from Belgium.
It is ruled by particular laws.” By stating that the Belgian Congo was ruled by statutes of its own, the Colonial Charter logically meant that laws concerning Belgium could not have any effect in the colony.127 In the affirmative case, they had to be especially signed into law for the colony. In one decision, dated 3 June 1935, the Belgian Supreme Court evoked the fact that the Belgian Congo and Belgium were subject to distinct and independent rules, although those rules emanated from the same sovereignty, i.e. the King. It then ruled that statutes of the mother country should be invoked in the colony on the condition that they are expressly required by a colonial regulation.128
Despite its legal independence, nevertheless, the Belgian Congo was subject to Belgian sovereignty. It could, therefore, not be considered as a foreign country with regard to Belgian law,129 particularly “the fundamental norms of its civil law.”130 In conformity with this principle, the Congo had, as explained in the following section, to share the civil law legal system legacy with its fatherland.
125 Article 1 al. 4, first sentence, of the 1831 Belgian Constitution, amended on 7 September 1893, has been repealed since 1970 by the Law of 24 December 1970.
126 See the Colonial Charter Law of 18 October 1908 (BO 1908 65).
127 There are authorities that state that, “although in the case of doubtful interpretation of Congolese regulations, one may consult the corresponding text of Belgian law, this cannot and must not be understood as meaning the extension of the application of Belgian statutes in the Congo.”
Translated from the original French worded as follows: “Si, en cas d’interprétation douteuse des lois congolaises, on peut s’en rapporter au texte des lois belges sur la matière, cette faculté ne peut ni ne doit s’etendre jusqu’à permettre l’application des lois belges au Congo (italics added).” See Boma 5 March 1912 Jur Congo 1913 240; CG App Boma 30 April 1912 Jur Congo 1914-1919 1.
128 Cass B 3 June 1935 RJCB 1935 201.
129 Cass B 31 May 1928 Jur Col 1928 33, and RJCB 1928 257.
130 Civ Brux 20 June 1957 RJCB 1958 115.
2.2.5.5 Signs of the Napoleonic civil code in Congolese civil law
As in many other civil law countries, Congolese civil law is divided into three areas, the Law of Persons, Property Law, and the Law of Obligations. Compared to its parent countries, the three traditional Books of the Congolese civil code were enacted at different times, as in France and Belgium, but “out of order”131 for the DRC. Under Congolese law, the Book concerning obligations should chronologically constitute the first Book of the civil code.132 In that order, the Books governing persons and property would respectively form the second and the third Books. This appears to have been the Congolese legislator’s purpose for two reasons. Firstly, the Decree of 30 July 1888 is entitled “Civil Code - 1st Book: Of Contracts or of Conventional Obligations”.133 Secondly, its introductory Article stipulates explicitly, “Will form the ‘first book’ of the civil code: of Contracts or of Conventional Obligations, the titles I to XII which text is annexed to the present Decree consisting of 660 articles.”134
Although previous to the two others, the book of obligations was, however, relegated to the third position from 1929 by the first code’s publishers, Louwers and Kuck, after Persons (Book I) and Property (Book II).135 Those publishers were followed, twenty years later, by Piron and Devos, apparently in order to fit Congolese legal classification to Belgian law and, indirectly, to the Napoleonic Code.136 Piron and Devos are aware of the infringement. They confessed, moreover, to not having
131 See Crabb Legal System 89.
132 This Book was decreed in 1888, whereas the Book of Persons intervened in 1895, and the Book of Property in 1912.
133 In the original French, “Décret du 30 Juillet 1888 portant Code Civil – Livre Premier : Des contrats ou des obligations conventionnelles”, in Piron 98.
134 As regards the Book of Persons, however, Article 1 of the Decree of 4 May 1895 provided only that the provisions annexed to it would constitute the titles of the “Book of the Civil Code entitled:
Of Persons” without indicating its order. This was also the same for the Book of Property enacted by different successive decrees, particularly the decrees of 31 July 1912, 30 June 1913, 6 February 1920, and the decree of 20 July 1920. The single articles of each of these decrees stipulated merely that its provisions would form Titles I, II, III, and IV and V of the Book of the Civil Code entitled:
Of things and the different modifications of the property, Piron 50 and 81.
135 Louwers/Kuck Codes et Lois 1.
136 See Kalongo Obligations 15; Mubalama Obligations 25.
conformed to the directions given by the legislator.137 According to them, the addition of two supplementary books to the civil code, viz. the Book of Persons and the one of Property, made the initial ordering valueless.138
With humility, this justification gives the impression of not being convincing.
It is believed that the Congolese civil code’s publishers could have met the initial legislator’s ordering without detracting from the compilation value of the existing texts. Currently, it is thought that the original legislator’s categorisation should be undervalued. Confirmation of this is the fact that, from 1987, the Book of Persons has been abrogated by the Family Code,139 and the Book of Property repealed by the 1973 Land Law.140 Such being the situation, it is, therefore, incorrect that some people continue to refer to the Book of Obligations as the “Third Book of the Civil Code”, the first two books having already been revoked.
To be precise, under current Congolese civil law, the law of persons, the law of property and land, and the law of obligations are independent from one another.
Each is governed by an autonomous statute: the law of persons by the 1987 CFC;
property law by the 1973 Land law; and the law of obligations by the 1888 CCO.
Congolese civil law is ruled by three different civil codes, i.e. the CFC, Land law, and the CCO. It is the sum of the provisions of these three codes that form the Congolese civil law. Concerning the law of obligations, in particular, it includes contract law,141 torts law,142 and unjust enrichment rules143. If one considers private law in general, there is also, in the Congo, a “Code of Commerce”.144 This Code has, however, never been formally enacted as a self-governing code; it consists rather of loose-standing acts dealing with different commercial matters such as cheques,145
137 Piron 98.
138 Ibid.
139 Article 915 CFC.
140 Article 398, 26º Land Law.
141 See Articles 1 to 245 and Articles 263 to 551 CCO.
142 See Articles 258 to 262 CCO.
143 See Articles 246 to 257 CCO.
144 See Commercial Code Decree of 2 August 1913 (BO 1913 775), hereinafter CCom.
145 Decree of 10 December 1951 (BO 1952 342).
bankruptcy,146 and commercial companies.147 These Acts were passed at widely separated dates and were grouped under the CCom heading for convenience by editors of the Congolese codes.148
As has been mentioned previously, all of the Congolese codes were in general inspired by Belgian law and the Napoleonic civil code itself. One commentator states, in this regard, that if the law of persons and the law of property have moved some distance away from the Napoleonic code,149 such is not the case with the law of obligations.150 This is summarised nicely by Crabb as follows:
Although the law of Belgium as such never extended to the Congo, the form and techniques of the Congolese written law have naturally reflected those of the Belgian legal system. Since the Belgian system is largely based on the French legal system, the Congolese legal system in its written law component is aligned with the nations that follow the Napoleonic French legal tradition.151
Similarly, the fact that the Belgian Congo was ruled by particular laws did not necessarily entail the disappearance of different laws inherited from the Congo Free State at independence. Those statutes, including the CCO, remained in force until the country became independent in 1960.