Mussolini y su ideal de supremacía italiana

It was mentioned earlier that the adoption of the CISG marked a turning point in the harmonisation of international sales law history. The Convention has, in effect, been implemented as a uniform law governing contracts for the international sale of goods in all contracting states.⁷⁵ Its significance is justified, in the view of Kröll and others, by the fact that,

The (…) Convention contains substantive rules on two of the most important questions in international sales transactions. Part II regulates the formation of the contract of sale by matching acceptance and performance. Part III contains rules on the rights and obligations of sellers and buyers arising from the international sale of

73 For the meaning and difficulties to determine what the realities of the African continent are, see Fontaine Avant-Projet 3-5. The adaptation to African specificities is not necessarily considerable for international transactions as it will be discussed later. One example of this is the responsibility of the seller for patent and latent defects; and the silence of the Commercial Act in respect of third parties’ legal claims.

74 Magnus in CISG vs 3; see also Ferrari OHADA 79 81.

75 Cf. Preamble, paragraph 3. The number of reported cases dealing with the CISG proves that the CISG is really applied in practice.

goods contract, as well as the remedies that parties to a contract of sale have in response to the breach of its counterparty.⁷⁶

The importance of the CISG is, furthermore, accounted for by the fact that it provides commercial operators from all over the world with “the same substantive regime to be applied to the contract of sale: the same uniform language, methodology and a common understanding to the basic issues of the international sale of goods contract.”⁷⁷ With such prestige, every country would normally access the UN Sales Convention, which is, however, not the case in reality.

In the light of the above, the main problem of this study is located in the fact that, although the DRC took part in meetings that led to the adoption of the Vienna Convention, it has not yet ratified it. The failure of the DRC to ratify the CISG has meant that international sales contracts were, for a long time, governed in the DRC by provisions dating back to colonial times. The fact that the CCO had become out-of-date suggested lacunas in the initial Congolese international sales contract law.

These gaps have, to a certain extent, been filled by Articles 234 to 302 of the UAGCL. Compared to the CISG, Articles 234 to 302 also establish a set of rules dealing with the formation and performance of sales contracts, the rights and obligations of sellers and buyers, as well as remedies available to contracting parties in the case of a breach of contract.

Even though UAGCL provisions bear a resemblance to CISG rules, modern Congolese law has, nevertheless, its own salient features which deserve attention. To remain within the scope of this study, some of the characteristics alluded to above, which in turn can be described as gaps, may be found in principles applicable to international contracts in general, as well as in provisions governing the formation of contracts and the obligations of parties.

With regard to general provisions relating to international contracts, Congolese PIL rules defer contracts with a foreign element, inter alia, to the law of

76 Kröll/Mistelis/Viscasillas UN Convention 5-6 §10; see also Oosthuizen Rights 3.

77 Ibid.

the place where they are concluded. As it is stated by Article 11 PILD, “Agreements are governed by the law of the place where they are made. (…) Contracts are governed, as for their substance, effects, and evidence by the law of the place where they are concluded, unless when parties provide otherwise.”⁷⁸

Since the provision designates the law of the place of conclusion of the contract as the law governing international contracts, it follows that the CISG may apply to contracts formed by Congolese entities by virtue of PIL principles.⁷⁹ Article 1(1) (b) CISG specifies, in this respect, that the Convention applies to contracts of sale of goods between parties whose places of business are in different states “when the rules of private international law lead to the application of the law of a Contracting State”. Consequently, despite the fact that the DRC has not yet ratified the Convention, Congolese businessmen might be surprised by its application to their contracts without choosing it as the applicable law, a situation that leads to legal insecurity. Where, however, contracts are concluded in the DRC, Congolese law, including OHADA law, will be applicable. Since the integration of OHADA law in the DRC is very recent, there is a need to assess critically the impact it has had on the historical Congolese sales law. It also needs to be compared to other modern systems of law, such as the CISG and South African law.

It has already been noted that the CISG is a unified substantive law aimed at unifying the law of sale of goods internationally. Its importance for comparative purposes is then indisputable. With regard to South African law, on the other hand, it is a mixed legal system which combines both civil law and common law principles.

Two main characteristics are common to the DRC and South Africa which justify the significance of a comparative undertaking between their legal systems. Firstly, both countries are CISG non-contracting states where the same rules apply to both

78 Article 11 al. 1 and 3 PILD, in Piron/Devos Codes et Lois 52. Piron and Devos’ book will simply be referred to in the following development as Piron.

79 Cf. Kadner 2011 (13) YB of PIL 165. For a comparative view with regard to South African law, see Eiselen 2007 (19) SA Merc LJ 14 and 25; Eiselen 1999 (116) SALJ 323 369; Hugo 1999 (11) 1 27; Van Niekerk/Schulze Trade 108; Oosthuizen Rights 5.

domestic and international sales contacts.⁸⁰ Secondly, South African historical sales law is, like Congolese law, based on the Roman civil law tradition.⁸¹ Although both countries were influenced by Roman civil law, however, Congolese law follows the French Code Civil tradition while South African followed the non-codified Roman-Dutch tradition. What is more, because of the Anglo-American common law influence, South African law departs from the law of the DRC on the basis that it is secular, and, as such, it is increasingly flexible, admitting, and undergoing constant changes in response to worldly exigencies.⁸² Owing to its flexibility, South African sales law is more updated than Congolese law, and that might enable it to serve as a reference to assess the latter.

Coming back to the scope of this study, rules governing the formation of international sale of goods contracts are provided in Part II of the CISG. This part deals, among other things, with the offer and acceptance as essential elements of any valid international sales contract. Like the CISG, Article 241 UAGCL specifies that a contract is concluded either by the acceptance of an offer or by the conducts of the parties which indicate acceptance of the agreement. The provision does not, however, define what such conducts are. Similarly, Article 245 UAGCL states that any acceptance that contains material modifications amounts to a rejection of the offer, which then constitutes a counter-offer. Once again, in contrast to its equivalent CISG provision, this Article is silent with regard to additional terms that can be viewed as substantial alterations. Because the definition of conducts and material changes is left to the discretion of the judge, there is a risk that this situation will lead to uncertainty in commercial dealings.

On the other hand, contracts are generally defined as agreements which give rise to obligations.⁸³ Their most important effect is to establish rights and obligations for both the seller and buyer. As far as the obligations of the seller are concerned,

80 For the specific case of South Africa, see Van Niekerk/Schulze Trade 65.

81 See Palmer Mixed Jurisdictions 23; Joubert Contract 1; Hahlo/Kahn Union 18; Hahlo/Kahn Legal System 585-586; Hahlo/Kahn Union 42; Zimmerman Mixed System 41 48.

82 Cf. Owsia Contract 4; for illustrations, see Chapter III below.

83 Cf. Article 1 CCO.

Congolese rules in Articles 250 to 259 UAGCL are almost in agreement with the CISG’s provisions in Articles 30 to 44. Both sources of law oblige the seller to deliver goods that are, among other things, of the right quantity, quality, and description, as stipulated in the contract, otherwise it will be sued for lack of conformity, and to protect the buyer against any third-party claims. If, however, the CISG has established a single concept of non-conformity, modern Congolese law gives the impression of maintaining the dual distinction between hidden and patent defects.⁸⁴ Establishing the seller liable for hidden defects is reasonable. Holding him responsible for disclosed defects, however, appears to be irregular. This situation has as consequence to generate negligent dealers. Such situation, in addition, places the seller in a condition that it may be sued anytime for discrepancies the buyer was presumed having agreed to tacitly, which is source of legal insecurity. Similarly, where the Convention requires the seller to protect the buyer against every intellectual property right,⁸⁵ Congolese law appears to lack such a specific obligation.

The lack of an explicit obligation in respect of eviction based on intellectual and industrial property rights means that claims relating to them are ruled by the general principle of guarantee against eviction. Such a situation is not favourable to the seller owing to the specificity of intellectual rights. With regard to the obligations of the buyer, both the Vienna Convention⁸⁶ and modern Congolese law⁸⁷ require the buyer to pay the price of the goods, take delivery of them, and examine the goods for a probable timely lack of conformity notification. Nevertheless, the shorter notice period provided by Congolese law seems to be more prejudicial than that indicated in both the CISG and South African law.

From the illustration above, it appears that, in spite of some similarities between the Vienna Convention, South African law, and modern Congolese law, these legal systems differ in terms of many specific aspects relating to international

84 Cf. Articles 258 and 259 UAGCL.

85 Cf. Article 42 CISG.

86 Articles 53 to 60 CISG.

87 Articles 262 to 274 UAGCL.

sales contracts throughout their conclusion and performance. Such differences may have a significant impact on the behaviour of parties to international sales contracts⁸⁸ and contribute to the slowing down of international transactions in the DRC.

Normally, the law should evolve with the society by developing and being adapted to modern demands. The existence of a modern sales contract law that incorporates rules recognised and accepted universally should undoubtedly reassure and protect contracting parties. Thus, in order to deal with the above research problem, two relevant questions need to be asked. Firstly, what are the shortcomings of Congolese law in terms of international sales contracts? Secondly, how can these shortcomings be dealt with in order to comply with the requirements of modern international transactions?