BACKGROUND TO THE STUDY

Divergence in legal systems is commonly regarded as one of the major obstacles impeding the selling of goods across international boundaries. The development of a unified legal system to regulate cross-border sales of products was required when cross-border commercial activity began to rise around the beginning of the 20th century as a result of improvements in transportation and communication. As a result of the efforts made, the United Nations Convention on Contracts for the International Sale of Goods, generally referred to as the CISG or the Convention, was formed on April 10, 1980, in Vienna and came into effect on January 1, 1988. Many people still wonder why many African countries do not sign the Convention despite its resounding victories and universal appreciation. In reality, it has only been approved by 13 of the 54 countries on the continent.  The three most significant non-member countries in Africa are Kenya, Nigeria, and the Republic of South Africa.  Many Africans really think that regional rather than global levels of legal unification could lead to more efficient law-making. As a result, the majority of French-speaking countries in Central and West Africa understood the value of creating a consistent regional legal system that would reflect their shared vision and increase the legal safety of member countries’ cross-border trade. As a result, the Organization for the Harmonization of Business Laws in Africa (also known by its French name as the OHADA) was established on October 17, 1993, in Port Louis, Mauritius.  There are nine legal clauses in the OHADA Treaty, also referred to as “Uniform Acts.” There are a number of them, including the Uniform Act on General Commercial Law, the Uniform Act on Commercial Companies and Economic Interest Groups, the Uniform Act on Insolvency Law, the Uniform Act on Cooperative Societies, the Uniform Act Organizing Securities, the Uniform Act Organizing Simplified Recovery Procedures, the Uniform Act on Arbitration, and the Uniform Act on Accounting. The principal statute that controls this study is the Uniform Act on General Commercial Law (henceforth referred to as the UAGCL), in particular book eight, which deals with contracts for the sale of goods.

In line with Article 234, the Uniform OHADA Acts are applicable to agreements between traders, whether they are natural or legal persons, for the sale of goods, including agreements for the supply of goods for production or manufacture. If the parties have a place of business in an OHADA state or if a rule of private international law leads to the law of an OHADA state, as stated in Article 234’s paragraph 2, the contract of sale is also subject to commercial provisions.

The Uniform Acts of the OHADA may be applied directly or indirectly, according to this study. The seat of business of each party must, in theory, be situated in the contractual state for the OHADA to be applied immediately. Additionally, because of the OHADA’s indirect applicability, the parties’ places of business can be found in other states without necessarily being those that made up the contract. However, in order for the principles of private international law to apply, the state whose law will do so must be a contracting state.

Given that paragraph 2 offers an additional possibility of application, even though the requirements of article 234(1) have not been satisfied, the scope of this article 234(2) actually constitutes a significant enlargement of the Uniform Acts’ scope of application. This item, however, emphasizes that the parties may agree to something different and disallows the use of the OHADA sales law.