Thèses soutenues

30/11/2011 Achille André NGWANZA

The « Favor Contractus » in the UNIDROIT Principles and the Preliminary Draft OHADA Uniform Act on tracts.

Mention : Lieu : Horaire : Directeur de thèse : Christophe Seraglini

Description of the doctoral dissertation

The UNIDROIT Principles of International Commercial Contracts were drafted with the aimof creating universal rules based on a pragmatic approach, and not in defense of a particularlegal tradition. In the OHADA area, a preliminary draft Uniform Act on contract law wasdrafted using the Unidroit Principles as a model, which took up nearly all of the provisions.Given the cultural neutrality of the UNIDROIT Principles, one may wonder whether thisinstrument was indeed an appropriate source of inspiration for a predominantly civil law area.A proper analysis of this issue implies to scrutinize the philosophy underlying the UnidroitPrinciples. In this regard, and contrary to concepts such as freedom of contract, good faith andfair dealings, due consideration given to usages and fight against unfairness which have aclear axiological orientation, favor contractus provides a good lens for analysis. Focusing onthe protection of the contract, it will be easily understandable whether the UNIDROITPrinciples are an assault to the legal tradition of the majority of OHADA countries. With aview to controlling the variety of risks bearing upon the contract, the Unidroit Principles dealwith the protection of the contract under a temporal perspective, keeping it in existence andensuring its performance. In so doing, they do not make a choice between economicefficiency and contractual fairness, but integrate both. As a result, and despite theimperfection of some of their rules, the UNIDROIT Principles provide a valuable source ofinspiration for the OHADA legislator, who could also benefit from certain improvements tobe drawn from the contract law reform projects in France.