THE REQUIREM ENT OF OFFER AND ACCEPTANCE

Even though English and French law abounds with so much literature on offer and acceptance, on revocation, lapse of offer, the place and time of acceptance, on whether silence counts as acceptance etc,9 they still remain the convenient and logical starting point for any study on the formation of contracts, not least because it provides the most common framework for the analysis of contract formation.

An exhaustive survey of all apsects of offer and acceptance is not necessary. I shall focus on the basic concept and structure of the doctrine. My concern will be to analyze how the doctrine of offer and acceptance has been interpreted and applied by Cameroonian courts, and to consider some problems raised by the doctrine. It may also be of some interest to highlight some similarities and differences in approach between the common law and the civil law in Cameroon.

As is the case in England and France,10 in both the Common Law and Civil Law Cameroon, judicial inquiry into the very existence of a contract seeks to find

7 For English law, see generally Treitel, T h e L aw o f C ontract, 1991, pp 149-160; Cheshire, F ifoot and Furmston, 1991, pp. 111-121; and for French law, see the brilliant articles by Oppetit,

"L ’Engagement d ’honneur”, D . 1979, chr. 107; Mayer, "L ’Amitie", (1974) JCP. 1. 2663; and C am ille Jauffret-Spinesi, "The Domaine o f Contract Law: French Report", In: Harris and Tallon, ed s., C on tract L a w T od ay; A nglo-F rench C om p arisons, 1989, p. 122.

8 See Nche Mela v. Vincent Chi Nso Ngang H C B /56/86 (Bamenda, unreported).

9 See the com prehensive surveys o f Aubert, N otions et R oles de 1’O ffre et de 1’A ccep ta tio n d an s la F orm a tio n du C ontrat, 1970; and Schlessinger, ed., F orm ation o f C ontracts: A S tu d y o f the C om m on C ore o f L egal S ystem s, 1968; Parviz Owsia, " The Notion and Function o f Offer and Acceptance Under French and English law" (1992) 66 T u l.L .R . 871; Corbin, "Offer and Acceptance"

(1917) 26 Y ale L.J. 169; L itvinoff, "Offer and Acceptance in Louisiana Law: A Comparative A nalysis”

(1967) 28 La. L.R . 1.

10 See generally the English and French Reports in Rodiere, ed ., H a r m o n isa tio n d u D ro it des A ffa ires d ans les Pays du M arch£ C om m u n - L a Form ation du C on trat. 1976

something called an ‘offer’ and something called ‘an acceptance’. Thus the basic rule is that a contract is concluded when a firm offer is made and this offer is unconditionally accepted. This rule is so entrenched in both systems that its operation seems to be taken for granted as a natural and logical mechanism by the courts in Cameroon.

The importance of offer and acceptance in contract formation is very much underlined by the fact that Cameroonian courts have been known to grant or deny damages by finding the existence or absence of a valid offer and acceptance. In Bassum Thadeus v. Youya Francis, 11 the Bamenda Court of Appeal, re-emphasised the rule that in order to decide whether the parties have reached an agreement, it is usual to inquire whether there has been a definite offer by one party and acceptance to that offer by the other. In that case the respondent offered to pay the appellant a block sum of money if the latter would serve in his business. It was agreed that the appellant would earn no salary while serving the respondent but that the said block sum was to be paid to him when he became "mature" enough to start his own business. The appellant did serve the respondent for about eight years and because the latter would not keep to his promise, the appellant sued him for breach of contract. The trial judge held that there was no contract because the respondent’s promise was gratuitous. This was a surprising decision in view of the fact that this practice is commonplace in Cameroon.

Reversing that decision, the Court of Appeal observed that that the trial judge had misconstrued the relationship of the parties by failing to address his mind to the principles of offer and acceptance. It took the view that from the conduct of the parties, it was clear that the requirements of offer and acceptance were satisfied, culminating to a contract. The appellant was therefore entitled to succeed.

In Civil Law Cameroon, article 1101 of the Civil Code lists the consent of the parties as one of the requirements of a valid contract. But the term consent, in contractual matters, bears two different connotations. In one sense it means the

11 B C A /4 8 /8 4 (Bamenda, 12-07-1985, unreported).

accord of two parties’ wills on the projected contract, or the meeting of their minds.

In the other and more restricted sense, consent means each party’s individual acquiescence to the conditions of the projected contract, given with the intent of creating a legal obligation.12 It is submitted that actually the two references of the term consent do not differ in essence. Since no contract will result unless some unity can be reasonably predicated on what both parties had in mind, no particular importance will be attached to the distinction between the two meanings of the term consent.

The concept of consent in French law is best analyzed in terms of offer and acceptance.13 Put another way, offer and acceptance is an expression of consent.14 It is thus not surprising to note that in Civil Law Cameroon, an analysis in terms of offer and acceptance was proffered in Ste Balton -Cam eroun v. Pierre B ougha.15 In that case the respondent sued the appellants for breach of contract, alleging that the latter had failed to meet up with a contractual undertaking to supply his private medical practice with some equipment. To support his claim, the respondent produced a letter in which the appellants had irrevocably undertaken to perform the alleged contract:

"Par cette letrre nous vous confirmons que notre societe s ’engage felinement et de fagon irrevocable de delivrer tout Vequipement medical et toutes les installations etc... pour votre nouvelle clinique comme convenu avec vous et que nous arrangerons la totalite du financement necessaire".

For their part, the appellants protested that this letter amounted to neither an offer nor an acceptance, with the consequence that there was no contract. But the Supreme Court, like the Yaounde Court of Appeal before it, was satisfied that the letter

12 Planiol et Ripert (2nd. ed. Esmein) vol. VI (1952) para. 99.

13 Ghestin, L es O b ligation s - L e C ontrat: F orm ation, 1988, para. 199; Aubert, Op. c it .. note 9, para. 1.

14 W eill & Terre, Les O b ligation s, 1986, paras. 132-3.

15 Pouvoir N o. 59/C C /84-85 du 0 8 /9 /1 9 8 3 . (Unreported).

amounted to an acceptance since it was clear from its content, especially the words

"comme convenu avec vous", that the appellant had earlier made an offer. It was held accordingly that the respondent’s action for breach must succeed.

It is clear from the above cases that the analysis of contract in terms of offer and acceptance is common to both the common and the civil law. Yet this homogeneity of terms must not mislead one into minimizing the difference in practical results which can flow from the inquiry into offer and acceptance under both systems.16 This difference is often clothed in terms of a dichotomy between objectivity and subjectivity, namely: that the common law applies an objective test17 in its interpretation and understanding of consensus whereas French law adopts a subjective approach.

Explained more fully, this means that the common law approach to offer and acceptance is empirical and generally linked to objective inferences to be drawn from the acts of the parties while the civil law treatment, by contrast, is made analytically with reference to the will (volonte) or the consent (consentement) of the parties.

The objective nature of English contract doctrine has received express judicial recognition in Common Law Cameroon. This is evident in the decision in Bassum v. Y ouya,18 in which the Bamenda Court of Appeal confirmed that,

"In answering the question as to whether there has been offer and acceptance, the courts apply an objective test. If the courts have to all outward appearances agreed in the same terms upon the same subject matter neither can generally deny that he intended to agree."

While the courts in Common Law Cameroon generally follow and apply the detailed rules of offer and acceptance that have evolved in England and other common law jurisdictions, there are no such detailed rules in Civil Law Cameroon. This is

16 N icholas, French L aw o f C ontract, 1982, p. 59 et. s.

17 For more on the objective nature o f English contract doctrine, see e .g . Howarth, "The Meaning o f Objectivity> o f Contract" (1984) 100 L .Q .R . 265, and "A Note on the Objectivity o f Contract” (1987) 103 L .Q .R . 527; Vorster, "A Comment on the Meaning o f Objectivity o f Contract” (1987) 103 L .Q .R . 275.

18 Supra, note 11.

because the Cameroonian (and French) Civil Codes do not contain any rules on offer and acceptance and as a result, significantly lack any coherent approach to the question. This brings one to another major difference between the two systems.

French law generally embraces a wider area of fact as opposed to law than English law. Questions of fact are exclusively within the pouvoir souverain of the trial judge, with the Supreme Court or other appellate courts being able to exercise any control only in limited circumstances.19 Matters of offer and acceptance are considered to be a question of fact because the question as to whether or not there is an agreement is itself a question of fact. For that reason neither the Code nor any other text lays down any rules on offer and acceptance. The only requirement is that there should be agreement.

That said, there are three areas under the French Civil Code that have recently been interpreted as providing a predetermined pattern of offer and acceptance. These include article 1108 on the requirement that there should be consent of the party who obligates himself,20 and articles 894 on donation and 1984 on mandate21 respectively. Since these articles are also contained in the Cameroonian Code, there is no reason why this kind of interpretation cannot be extended to Cameroon.

Although the relevant texts of both Civil Codes may be open to the kind of interpretation just canvassed above, it is nevertheless my contention that there is no need to stretch them to suit the offer and acceptance analysis. It seems clear to me that the Code is concerned throughout with the consensualist principle of mutual assent and not with the mechanism of its formation, which may explain why under

19 See the discussion on the Supreme Court in chapter 1.

20 See 1 Marty & Raynaud, D roit C ivil- Les O b ligation s, 1988, para. 107, w here it is said that article 1108 appears to require that the offer be made by the party "who obligates himself" and the acceptance be made by the other party. But they were careful to add that this is not necessarily the case.

21 Some authors such as Ghestin, para. 207-1 (citing Rouhette, D roit de la Consommation et Theorie Generale du Contrat, In: E tu des R O D IE R E , n o .14, 1981, p. 259), maintain that, for the conclusion o f nominate contracts o f donation and mandate, "the acceptance necessarily emanates from the donee (art. 894) and the agent (art. 1984) and therefore it is irreversibly the donor and the principal w ho make the offer, no matter where the initiative came from and what twistings the p ossib le bargaining might have u nd ergone."

the general part of the Code regarding a contract no reference is made to offer and acceptance.

Under both systems in Cameroon, offer and acceptance may be made in any form whatsoever, except for particular contracts where a statute requires that special formalities should be complied with. These formalities usually consist in the necessity of a written document which is registered and notarised.22 But generally, the offer as well as the acceptance may be express, implied or tacit.