SISTEMA SATELITAL AQUA

If the offer and acceptance takes place at the same time or at the same place (i.e.

the parties are inter praesent.es) English and French law both agree that the contract is formed at the moment the acceptance is signified. However, the questions as to

88 [1978]1 W .L .R . 520 ,523.

89 Butler Machine Tool v. E x-C ell-0 Corp. [1979] 1 W .L .R . 401, 404.

90 For problems in these area, see generally Von Mehren, "The Battle o f F orm s”: A Comparative View"

(1990) 38 A .J.C .L . 265; Adams, "The Battle o f Forms" (1979) 42 M .L .R . 715; For contracts o f adhesion in French law , see R ieg, "Contrat Type et Contrat D ’Adhesion” Trav. et R ech ., Inst. Dr.

Compare, Paris, t. XXXIII, 1970; Berlioz, L e C ontrat d ’A dh esion, 1976.

when and where a contract is formed become important in the case where the offer and the acceptance take place at different moments or different places (i.e. the parties are inter absentes). Since the reasons for their respective importance vary, they shall be treated separately.

(1). The Time of Contract Formation.

It is important to determine when the contract is formed by the offeree’s acceptance not only because of its unavoidable relation to the problem of revocability, but also because it relates to matters of capacity, transfer of title and the problem of risk. It may also be important in determining which law is to apply in cases where the law is changed while the contract is under negotiation. The problem is less than straightforward in the case of contracts between distant parties. The archetypal case is a contract by correspondence.91 What if the offeror and offeree, who are respectively based in the common and civil parts of law of Cameroon elect to communicate by mail? At what moment is the contract to be considered concluded?

At common law, in matters of correspondence, the leading case of Adams v.

Lindsell92 set up the general rule that a postal acceptance takes effect when the letter of acceptance is posted. Several reasons have been advanced to support the rule,93 none of which can be said to be overwhelmingly convincing, so that a whole set of controversies is presented under this rule.94

91 A lthough every contract made by parties who are not face to face is a contract inter absentes, contracts inter absentes are not necessarily contracts by correspondence. For a discussion on this subject, see Asher Kahn, "Contracts by Correspondence" (1957-60) vols. 1-4 M cG ill L.J. 9 8 -1 2 6 at 99-101.

92 (1818) 1 B & Aid 681

93 One is that the offeror must be considered as making the offer all the time that his offer is in the post, and that the agreement therefore between the parties is com plete as soon as the acceptance is posted. See Henthorn v. Fraser [1892] 2 Ch. 27, 33.

94 Evans, "The Anglo- American Mailing Rule: some problems o f offer and acceptance in contracts by correspondence" (1966) 15 l.C .L .Q . 553.

Some consider the rule arbitrary,95 while others have pointed to its other apparent shortcomings, such as making the offeror bound without knowing whether or not the offer was accepted, making a seller who sells his goods to a third party after waiting for a reasonable time for an answer liable for damages when acceptance was delayed or lost in the post and, worst of all, creating a contract even if the offeree withdraws his letter from the post office or prevents its delivery to the offeror96 or if it is lost through an accident in the post.97 These shortcomings notwithstanding, the rule does serve a useful function in that it limits the offeror’s power to revoke his offer with impunity.

In French law, various theories have been advanced to pinpoint the moment of formation. Two of these theories (declaration and expedition) contend that the contract is formed before the arrival of the letter of acceptance while the other two (reception and information) assert that the contract is formed only when that letter arrives at its destination.

There is no article in the French Civil Code directly supporting any of these theories. These theories have been criticised on different grounds and none can be said to be the clearly established theory. In fact, it has been argued that no general rule can be laid down and that the answer to the question when acceptance becomes effective can and should vary according to the facts, the nature of the contracts, the interests involved and the intention of the parties.98

The Cour de Cassation has not adopted any of the theories outright,99 whereas the court of appeal and other lower courts, when dealing with the question of time and not place of contract formation, have allowed their decisions to be governed by

95 Treitel, p. 25.

96 Nussbaum, "Comparative Aspects o f the Anglo-American Offer and Acceptance Doctrine" (1 9 3 6 ) 36 C ol.L .R . 921

97 Household Fire and Carriage Accident Insurance Co. Ltd v. Grant (1879) 4 E x .D . 2 1 6 , overruling British and American Television Co. v. Colson (1871) L.R . 6 Ex. 108.

98 Schlessinger, p. 1450; Carbonnier, para. 101(e); Weill & Terre, para. 152.

99 Colin et Capitant, para. 38; Planiol & Ripert (ed. Esmein), para. 187.

equitable considerations.100 It might be fair to say however, that on the whole the French courts have shown a tendency to apply the theory of reception to the question of when the contract is formed.101

In the absence of any decided cases on the subject of contracts by correspondence, one can only assume that the common law rule as laid down in Adams v. Lindsell will prevail, if and when the courts in Common Law Cameroon are confronted with the problem.102

The position in Civil Law Cameroon is equally difficult to predict, partly as a result of the various theories that have been propounded in France, and partly because the Cameroonian Civil Code is silent on the matter. However, in Ste SINCO M v.

Ste Vacalopoulos,m the question as to when a postal notice took effect was raised.

A notice of service had been sent by registered mail to the counsel of one of the parties who later claimed not to have received it. Since the mail had been registered, the date of posting was recorded. That notwithstanding, it was held by the then East (French) Cameroon Supreme Court that a postal notice takes effect, not from the date of posting, but from the date of reception. Even though that case did not directly concern a contract by correspondence, it nevertheless dealt with the posting rule and is therefore pertinent to this inquiry. By ruling as it did, the Supreme Court can be said to have endorsed the reception theory so one may expect that theory to prevail in Civil Law Cameroon.

It follows from the foregoing analysis that both systems in Cameroon might provide different answers to the question of when a contract by correspondence is formed. This difference is potentially a source of conflicts. Potentially because, so far there does appear to be no case in which both systems have clashed on the issue

100 cf. Planiol et Ripert (ed Esm ein), para. 5.

101 For exam ple, see Cass Civ. 2 1 .7 2 .1 9 6 0 , D. 1961 417, note Malaure; Kahn-Freund, S ou rceb ook , p. 345.

I0: It must be remembered that as a pre-1900 decision, Adams v. Lindsell is binding on the com m on law courts in Cameroon.

103 Arret N o. 5 du 26 Fev. 1965 (1965) no. 12 B .A .C .S .C .O . 1070.

of time in the formation of contracts. The reasons for the absence of any such cases are explained below under the sub-heading of place of formation. But the absence of actual litigation on the subject does not in any way dispense with the need for a brief discussion of the problem. I shall use a hypothetical case to analyze the problem.

Suppose X, in Buea (common law) sends by post an offer to sell goods to Y, in Douala (civil law), who posts back an acceptance which is lost in the post. By the (common) law in force in Buea, there is a contract because acceptance is effective on posting. By the (civil) law in Douala, there is no contract because acceptance is effective only on receipt. Which law is then to decide when or whether a contract was made?104

There are scarcely any English authorities on choice of law rules to be applied in deciding whether the parties to an alleged contract have reached agreement.105 It is proposed that if and when the Cameroonian courts are confronted with this problem, they should apply what is called the putative proper law as a solution.1(16 On this approach the court will have to determine which law would be the proper law in the objective sense on the assumption that a contract was made.107 If, in my hypothetical example, the offer had stated that the goods were to be delivered and the price paid in Douala, then no doubt, if a contract was made, the proper law would be the civil law, as the contract will be most closely connected with Douala, where civil law operates. Then civil law would be applied to decide whether there was a contract, with the result that there would not be, on account of the reception theory.

104 Jaffey, Offer and Acceptance and Related Questions in English Conflict o f Laws (1975) 24 I.C .L .Q . 6 0 3 -6 1 6 , discusses this problem.

103 Jaffey, Op. c it., note 104, 604.

106 D icey and M oris (T h e C on flict o f L aw s (9th ed.) rule 148, p. 763) favour this solution: "The formation o f a contract is governed by that law which would be the proper law o f the contract if the contract was validly concluded".

107 Cheshire & North, (11th ed .), p. 216.

This approach was used obiter in the Albeko,108 the only English case so far on offer and acceptance in the conflict of laws. In that case, a Swiss company alleged it had posted a letter of acceptance for a contract of agency to an English company, the would be principal. The letter was never received and it was found as a fact that it had not been posted, with the result that there was no contract. Even though the finding that the letter had not been posted was enough to dispose of the case, Salmon J. went further to express the view that even if it had been posted, there would still be no contract, because under Swiss law (which would have been the proper law, the offer having been communicated there and the contract of agency to be performed there) a contract is concluded only when acceptance is received by the offeror.

It is acknowledged that the putative proper law approach is not without its difficulties.109 First, it is not clear whether in ascertaining which is the putative proper law, account should be taken of an alleged choice of law in the supposed contract. Suppose an offer to sell goods is posted from common law Cameroon to an offeree in the civil law part, the goods to be delivered and the price to be paid in the civil law part, and the contract to be governed by the law in the common law.

The offeree posts an acceptance, later changes his mind and cables a rejection, which the offeror receives first. Under common law there is a contract but under civil law there is not. Assuming that a contract was made, then its proper law would be the common law with the result that there would be a contract. But it seems both to beg the question and to be unjust to the offeree, to allow common law to decide that the parties reached the agreement, merely because the offeror claims that a contract was made including a provision that it should be governed by English law, when the

108 Albeko Schumaschinen v. Kamborian Shoe Machine Co. Ltd [1961] 111 L.J 51 9 . This same approach was follow ed in Britannia S. S. Insurance Association v. Ausonia Assicurazione Spa [1984]

2 L l.R . 98 , C .A ., on the question whether a person signing a contract had the authority to do so.

109 Libling, "Formation o f International Contracts" (1979) 42 M .L .R . 169, criticises the accepted w isdom o f the putative proper law and argues that the correct interpretation o f such cases as the Albeko and Mackender v. Feldia), points to the importance o f distinguishing questions o f classification (governed by lex f o r i) and validity (governed by the putative proper law); For other d ifficulties o f the putative proper law, see generally Jaffey, In troduction to the C on flict o f L aw s, 1988, p. 163 ff.

offeree denies that he agreed to any such thing. This may sound theoretical and has certainly not happened in Cameroon. Yet one cannot exclude the possibility of its arising someday.110

English courts have had to consider this particular difficulty with different conclusions. In M ackender v. Feldia A .G .,111 Diplock L.J. thought that the question whether a contract had been made should not be decided by the law specified in a choice of law clause in the alleged contract, for if no contract had been made, it would follow that the law in question had not been agreed between the parties. In The P a ro u th ,112 on the other hand, the Court of Appeal seems to have accepted, obiter, 113 that English law, as the law which would be the implied chosen proper law of the contract (because the alleged contract contained a proviso for arbitration in English) if it was made, should determine whether it was made. It should follow that if the alleged contract contained an express choice of law clause then that law should decide whether the contract was made.

It is suggested that the better view is that of Diplock L.J. in M ackender v.

Feldia. It by no means follows from the fact that the parties agreed on a particular law to govern their contract that they also agreed that it should govern the question of whether they had made a contract at all. In other words, the question whether the parties have agreed on an alleged choice of law clause could arise independently of the question whether the parties had reached agreement on the contract itself. One should therefore ignore any alleged choice of law in the disputed contract and determine the question whether the parties had reached agreement by an objectively ascertained putative proper law i.e. the laws of the province (in the case of Cameroon) with which the contract would be most closely connected assuming that

110 The Canadian case o f Renfrew M ills, On. c it.. note 77, is proof that situations like that can occur in practice.

111 [1967] 2 Q .B . 590 at 602-3.

"= [1982] 2 LL .R . 351 C .A .

113 The issue itself was whether leave should be granted for service abroad under RSC Order 11-1 on the ground that the contract was governed by English Law.