Substance of the principle of the autonomy of the will

The principle of the autonomy of the will is neither explicitly expressed in the CCO nor in the OHADA Commercial Act as clearly as the freedom of contract is.²⁹⁷ It proceeds rather from a philosophical theory according to which the human will creates its own law and its own obligation.²⁹⁸ According to a number of scholars, the starting-point of the theory of the autonomy of the will “is the freedom of the individual, which can be curtailed only by free will, either in the original social contract or, within society, by individual acts of will.”²⁹⁹ Thus, an “autonomous will means a will which determines its rules for itself.”³⁰⁰ Specifically, “contractual obligation has its source in the will of the parties which alone and freely creates the contract and all its effects.”³⁰¹ It is, thus, acknowledged that, where the circumstances in which the contract was formed are silent as regards the intention of the parties, the court should read between the lines of the contract to find what the will of parties was.³⁰²

Compared to the freedom of contract, the autonomy of the will also reflects the individual and liberal vision of the Napoleonic era.³⁰³ It also constitutes one of the fundamental principles that govern the whole law of contracts. As some commentators have said, although the Code does not emphasise the word “will”, both

297 A similar situation is also observed under Belgian and French civil codes.

298 Khan-Freund/Lévy/Rudden Source-book 318; Kalongo Obligations 37; Mubalama Obligations 113.

299 Nicholas Contract 31; Herbots Contract 51.

300 Rouhette Obligatory Force 38 39; see also Elis 25 October 1913 JDC 1921 341 whereby, “under a contract, the will should tend to create a legal obligation.”

301 Ibid.

302 Comm Brux 19 March 1926 Jur Col 1927 36; Elis 11 March 1916 Jur Col 1926 334; Elis 10 April 1926 Jur Kat II 183.

303 See Gordley Doctrine 214; Khan-Freund/Lévy/Rudden Source-book 318. As Rouhette has said, although the principle of the autonomy of the will “was only formulated at a late date (in the last quarter of the nineteenth century), it had reigned as (...) albeit implicit sovereign since the Napoleonic Code, and that, even if it has undergone a crisis, that is now overcome.” See Rouhette Obligatory Force 38 39.

judicial decisions and scholarly writings insist on the fact that “the basis of the law of contract is la volonté.”³⁰⁴ Rouhette specifies this by stating that,

The will of parties is first of all the foundation of the contract. The making of the legal act is regulated by the principle of consensualism – the wills can be expressed in any manner and they are sufficient to create a contract. In addition, they must fully exist, be free, and be enlightened: where they are vitiated the basis of the institution is absent and there is no valid contract.

The will of the parties is, furthermore, the measure of the consequences of the contract. The contracting parties freely determine their respective rights and duties, and so, to establish the content of the contract, it is necessary to examine their will.

Once this will is discovered, the contract has an absolute force. What was willed commands definitive recognition, and, in particular, the judge has no power to revise the contract if it seems to him to be unjust.³⁰⁵

Following from the above explanation, the principle of freedom of contract and the principle of autonomy of the will are basically close to one another. Without any need to debate which of the two principles has precedence,³⁰⁶ it is important to note that both principles are based on the idea that “a man may be bound only by his own will; he is the best judge of his own interests; and, therefore, the best rule is that freely agreed by free men.”³⁰⁷ Such is the meaning of Article 33 al. 1 CCO which confers on contracts formed lawfully the same effect as is given to a statute.³⁰⁸

304 Khan-Freund/Lévy/Rudden Source-book 318; Rouhette Obligatory Force 38; see, in the same sense, Elis 25 October 1913 JDC 1921 341; Léo 19 January 1926 Jur Col 1928 177; Cass B 14 June 1928 RJCB 1928 294.

305 Rouhette Obligatory Force 38.

306 On the subject, two approaches have sometimes been adopted as solutions. Firstly, individual autonomy is usually seen as a supreme social value and a central pre-condition for individual freedom of contract. Considered in this way, party autonomy will arguably precede the freedom of contract. Regarding freedom, it is a fundamental human right that includes, among others, the freedom to enter into contract. Thus, given that the contract constitutes the main source of obligations, the freedom of contract serves as a fundamental basis for party autonomy and, therefore, precedes it. As one can see both approaches seem reasonable. (For further comments, see Fu Contract 6-7).

307 Khan-Freund/Lévy/Rudden Source-book 318.

308 Article 33 al. 1 provides that contracts formed in the statutory manner have the force of law for contracting parties.

Pursuant to this provision, all contracts lawfully concluded shall be considered as law for the parties,³⁰⁹ regardless of whether or not they have a special designation.³¹⁰

The above makes it clear that the autonomy of the will should be understood as a key principle from which other principles, viz. the freedom of contract, the principle of consensualism, and the binding force of contracting obligations, are derived.³¹¹ This principle governs the contractual field as a whole, including sales contracts. Insofar as the law of sale is concerned, Article 237 al. 1 UAGCL and Article 265 al. 3 CCO defer their effects to the general principles of the law of contract, including the autonomy of the will.

As it is for its predecessor, the principle of the autonomy of the will is sometimes shown by statutory expressions such “as required by the contract”³¹², “in accordance with the contract”,³¹³ or “as agreed upon”³¹⁴ used in the provisions defining the obligations of the parties. It can also be expressed by concepts like

“unless there is an agreement to the contrary” or “unless otherwise stipulated”.³¹⁵ The method of determining the will of contracting parties is defined by Article 238 al. 2 UAGCL. This provision requires courts to take into account some factual circumstances of the contract, for instance, previous negotiations reached between

309 For an illustration, see CSJ 3 April 1976 RC 100 BA 1977 65; Kin 28 February 1967 RJC 1968 No. 1 54; Cass B 14 June 1928 RJCB 1928 294.

310 Read with Article 7 al. 1 CCO; and Cass B 14 June 1928 Jur Col 67.

311 See Ghestin Formation 35.

312 See Article 253 al. 1 UAGCL which asks the seller to deliver the goods at the date “set by the contract” or determined “according to its stipulations”. See also Article 254 UAGCL which obliges the seller to perform his/her delivery obligation at the time, place, and in the form “required in the contract”. Compare this with Article 327 CCO.

313 See Article 250 UAGCL whereby, the seller is bound by “the conditions provided for in the contract” (…); and particularly Article 255 al. 1 which requires the seller to deliver the goods in the quantity, quality, specifications, and packaging “in accordance with the stipulations of the contract”.

314 See Articles 263 al. 1 and 268 UAGCL for which the buyer must pay the “price agreed upon”, at the “date agreed upon”; see also Article 259 al. 2 UAGCL (time limit non-conformity notification). Compare these with Articles 287; 288; 293; 294 al.1; 295; 333; and Article 334 CCO.

315 See authorities under Note 284 above.

the parties, practices established among them, or practices regularly observed in the sector of activities concerned.³¹⁶

It is important to note that, in the same way the party autonomy principle governs national contracts; it is also concerned with international transactions. In these kinds of contracts, the principle of the autonomy of the will aims to allow contracting parties to choose the law to which their contract is subject as they see fit.

To give an example of this, the freedom of choice of the law governing the contract results from the phrase unless when the parties provide otherwise introducing Article 11 al. 2 PILD.³¹⁷ So, parties are allowed to depart from national law provisions by choosing their own legislation because, as mentioned in section 2.3.2, most of contractual legal provisions provide merely supplementary rules.³¹⁸ In other words, at the time the contract is concluded, or subsequently, the seller and buyer may freely agree upon the law which will govern their rights and obligations.³¹⁹ The choice of the applicable law may be expressly stated; it may derive from the terms of the contract too. As Munoz has stated, the election of a foreign law can be articulated either in a clause incorporated into the contract or as a later agreement after the conclusion of the contract.³²⁰ In accordance with Article 238 al. 2 UAGCL, in the absence of an express choice of law, this can be deduced from the behaviour and conduct of contracting parties.³²¹ Nevertheless, the opportunity for parties to choose

316 See, in the same sense, Comm Brux 19 March 1926 Jur Col 1927 36; Elis 11 March 1916 Jur Col 1926 334; Elis 10 April 1926 Jur Kat II 183. It was ruled in Léo 29 September 1925 Jur Col 1929 84, however, that the intention of parties should be determined from factual circumstances on condition that contractual terms are ambiguous and likely to render the will uncertain.

317 For application, see Léo 8 January 1924 Jur Col 278 and Belg Jud 1931 118; Cons Sup 19 July 1913 Jur Congo 343; Cons Sup 28 January1921 Jur Congo 41; De Burlet International 283.

318 Cf. Boma 29 September 1903 Jur EIC I 284; Cons Sup 28 January 1921 Jur Congo 4; Léo 8 January 1924 Rev Doct Jur Col 278.

319 De Burlet International 283.

320 Munoz Contracts 28; see also Van Calster Private Law 132.

321 Cf. Article 238 al. 2 UAGCL and cases quoted in Note 315 above. In one decision, dated 8 January 1924, the Appeal Court of Kinshasa ruled that contracting parties have the freedom to choose legislation different from the law of the place where the contract was concluded. Such option, according to the court, should be read, for instance, through the insertion into the contract of one clause prohibited by the law of the place of the contract. (See Léo 8 January 1924 Belg Jud 1931 118). Among other factors contributing to finding an implicit choice of the law governing the contract, one may mention “the indirect reference to a law in the contract, the choice of a particular

a foreign law is, in principle, limited to international contracts so that domestic contracts should normally be ruled by national law.³²²

In a few words, the principle of the autonomy of the will postulates that parties are free to negotiate and conclude the contract according to their liking. In spite of its importance, however, the liberty of parties is sometimes restricted.