GENERAL INTRODUCTION

1.1 Background to the study

                                 In legal systems influenced by civil law traditions such as Cameroon’s administrative contracts are distinct from private contracts due to the involvement of the public administration and the pursuit of public interest. One of the defining features of these contracts is the inclusion of “exorbitant clauses” (clauses exorbitantes), which grant the public authority unilateral powers that would be impermissible under ordinary contract law. These clauses reflect the principle of the supremacy of the public interest over private interests and are justified by the need for flexibility, continuity, and efficiency in public service delivery. Examples include the administration’s right to, modify the contract unilaterally for public interest reasons, impose penalties without judicial intervention, terminate the contract without mutual consent. Such prerogatives are foreign to ordinary civil contracts, which are governed by the principle of equality between parties and mutual consent. The study of exorbitant clauses is crucial because it reveals the tension between administrative efficiency and private party protection, it raises questions about legal certainty, fairness, and judicial oversight, it invites comparative analysis with systems like France (where the concept originated), Brazil (under Law No. 14.133/2021)2[1], and Cameroon (under OHADA and national administrative law). Recent scholarship emphasizes that while these clauses serve public interest, they must be balanced by safeguards to prevent abuse and ensure respect for constitutional rights, including the right to due process and economic equilibrium.

                                  In public law traditions especially, those influenced by French legal theory an administrative contract is one entered into by a public entity (such as the State or a university) and a private party for the delivery of a public service or fulfillment of a public mission. These contracts are subject to administrative law, not ordinary civil or commercial law. Unlike private contracts, administrative contracts are often characterized by asymmetry: the public authority is not on equal footing with the private party it possesses privileges to protect the public interest. Exorbitant clauses (clauses exorbitantes du droit commun) are special provisions that grant unilateral powers to the administration which would be considered unfair or unenforceable in an ordinary (private) contract. In Cameroonian administrative law guided by French public law and OHADA principles these clauses are implied or explicitly stated in public procurement contracts, public-private partnership (PPP) agreements, University concession agreements (e.g., construction of student housing) UBa, as a public entity, may include exorbitant clauses in contracts for infrastructure, security, or catering allowing the university to adapt or revoke the contract if it jeopardizes the public mission of education. Modern administrative courts often scrutinize the proportionality and justification of such clauses, striking a balance between public necessity and private interest protection.

1.2 Definition of key terms

      Here we will be looking at the definition of some key terms in our work.

1.2.1 Exorbitant clauses.

                        The term exorbitant generally means exceeding reasonable or customary limits. According to the Cambridge Dictionary[2] and Merriam-Webster, Exorbitant clauses “Exceeding the customary or appropriate limits in intensity, amount, or size; not coming within the scope of ordinary law”. While this definition is often applied to prices or demands, in legal contexts it signals departure from ordinary legal norms.

                          In administrative law doctrine, an exorbitant clause is one that confers rights or imposes obligations on a party that are foreign to private law contracts. As defined by French administrative law scholars, “A clause is exorbitant when it grants prerogatives to the public authority or imposes obligations on the co-contractor that are not found in civil or commercial contracts.” This doctrinal view emphasizes the public interest and the asymmetry of power in administrative contracts.

                         Legally, a clause is considered exorbitant when it satisfies two cumulative conditions, “A clause is exorbitant if it confers rights or imposes obligations that are, by their nature, foreign to those freely accepted under civil or commercial law”. Such clauses are often used to qualify a contract as administrative, triggering the jurisdiction of administrative courts.

                       The concept was first articulated in CE, 31 July 1912, Société des granits porphyroïdes des Vosges[3], where the French Conseil d’État held that a contract lacking exorbitant clauses was governed by private law. Later, in TC, 13 October 2014, SA AXA France IARD[4], the Tribunal des conflits refined the definition, “A clause is exorbitant when, by the prerogatives it grants to the public authority in the execution of the contract, it implies, in the general interest, that the contract falls under the regime of administrative contracts.” This case law shifted the focus from merely being “foreign to private law” to serving the general interest through public prerogatives.

1.2.2 Ordinary law.

                             Ordinary law refers to any statute, regulation, ordinance, or executive order enacted by a legislative body that is subject to amendment or repeal by a simple majority vote. It is distinct from constitutional or organic laws, which require more rigorous procedures to amend. In essence, it is the general body of law that governs everyday matters and is subordinate to constitutional norms.

                             In legal doctrine, ordinary law is understood as, “A body of legal rules enacted by the legislature that governs the conduct of individuals and institutions, and which can be modified or repealed through ordinary legislative procedures.” It is contrasted with Constitutional law, which has superior authority and requires special procedures for amendment, organic law which may regulate fundamental institutions and often requires a qualified majority. Doctrinally, ordinary law is the default legal framework for regulating civil, criminal, administrative, and commercial matters.

                          Legally, ordinary law “A statute or legal norm enacted by a competent legislative authority, which is inferior to the Constitution and may be amended or repealed by a simple legislative majority.” It is the most common form of law in a legal system and includes, Penal codes, Civil codes, Labour laws, Education laws, administrative regulations. In Cameroon, for example, Law No. 2010/002[5] on the protection of persons with disabilities is an ordinary law it was passed by [6]Parliament and can be amended without constitutional procedures.

                            While ordinary law is not typically defined in a single landmark case, courts often distinguish it from constitutional law when assessing the validity of statutes. For instance, In Marbury v. Madison (1803), the U.S. Supreme Court held that ordinary laws conflicting with the Constitution are void, establishing the principle of constitutional supremacy, In Sentencia de 13 de febrero de 1981 (Spain)[7], the Constitutional Court clarified that organic laws and ordinary laws are not hierarchically superior, but apply to different domains. In Cameroonian jurisprudence, the Constitutional Council may strike down an ordinary law if it violates constitutional provisions, reinforcing the hierarchical structure of legal norms.

1.2.3 Administrative contracts

                                 A contract in which at least one party is a public authority, and which is governed by public law due to its purpose (e.g., public service) or the inclusion of clauses that are foreign to private law (e.g., unilateral modification or termination by the administration). This definition emphasizes the public character of the contract and the special prerogatives it grants to the administration.

                                In legal doctrine especially in French-influenced systems like Cameroon’s an administrative contract is, “A contract concluded by a public authority for the purpose of fulfilling a public service mission, and which includes clauses or obligations that are exorbitant to ordinary law. This doctrinal view is supported by scholars like René Chapus and Gabriela Shalev, who stress the hybrid nature of administrative contracts blending elements of public authority with contractual obligations.

                 Legally, an administrative contract is defined by the identity of the parties (at least one must be a public authority), the object of the contract (linked to public service or public interest), the presence of exorbitant clauses (e.g., unilateral modification, penalties without judicial review). In many jurisdictions, including Cameroon, such contracts are governed by administrative law, not civil law, and fall under the jurisdiction of administrative courts.

                French jurisprudence has shaped the modern understanding of administrative contracts CE, 31 July 1912, Société des granits porphyroïdes des Vosges Held that a contract without exorbitant clauses beven if involving a public authority may be governed by private law. TC, 13 October 2014, SA AXA France IARD Refined the definition “A contract is administrative if, by the prerogatives it grants to the public authority or the obligations it imposes on the co-contractor in the general interest, it is foreign to private law.” This case law emphasizes that public interest and special prerogatives are the defining features of administrative contracts.

1.3  Problem statement.

                                     In public contract law especially within civil law jurisdictions like Cameroon exorbitant clauses confer unilateral powers to the administration that are foreign to private contractual norms governed by ordinary law. These include the powers to modify, suspend, or terminate contracts unilaterally in the public interest. While such clauses are justified by the imperatives of public service and general interest, they raise critical concerns regarding legal predictability, fairness, and the protection of private contractors’ rights. Despite their prevalence in administrative contracts, there remains a jurisprudential and doctrinal tension between the need for administrative flexibility and the foundational principles of contractual equilibrium, mutual consent, and equality of parties under ordinary law. This tension becomes particularly problematic in contexts where there is lack of judicial oversight or control over the administration’s use of these clauses, private contractors are left without effective remedies or subjected to economic imbalance, the criteria for identifying what constitutes an “exorbitant clause” remain unclear or inconsistently applied.

                               On the other hand, there have been possible solutions. Establish statutory criteria for when and how exorbitant clauses may be invoked, require that such clauses be expressly justified in terms of necessity and proportionality. Empower administrative courts to conduct strict scrutiny of exorbitant clauses to ensure they serve a legitimate public interest and do not constitute abuse of power, encourage publication of guiding jurisprudence to shape consistent interpretation. Introduce compensatory mechanisms (e.g., financial rebalancing, renegotiation rights) for private parties affected by unilateral decisions, mandate notice and consultation periods before exercising exorbitant powers. This research thus interrogates the legal legitimacy, scope, and limitations of exorbitant clauses, exploring whether their inclusion in administrative contracts undermines the principles of ordinary law or can be reconciled with a rule-of-law-based public procurement regime.

1.4 Research Questions.

          A research question is essentially a core of a research project. It’s the fundamental inquiry that the study aims to answer.

1.4.1 Main Research Question.

          How do exorbitant clauses in administrative contracts challenge the principles of ordinary law, and what mechanisms exist to reconcile the exercise of public authority with contractual fairness?

1.4.2 Specific research question

          What legal principles distinguish exorbitant clauses from ordinary contractual provisions in Cameroonian administrative law?

                    How do courts and legal doctrine in Cameroon regulate the use of exorbitant clauses to protect private contractors’ rights while preserving the public interest?

1.5 Research Objectives.

           These are the specific, measurable goals that a researcher aims to achieve in a study. It defines what the researcher intends to accomplish and provide a clear direction for the research process.

1.5.1 Main Research Objectives.

          To examine the legal nature and characteristics of exorbitant clauses in administrative contracts, and how they diverge from principles of ordinary contract law.

1.5.2 Specific Research Objectives.

             To analyze the legal and doctrinal criteria used to identify exorbitant clauses in Cameroonian administrative contracts.

                 To evaluate how Cameroonian courts and legal practitioners regulate the use of exorbitant clauses to ensure fairness and legal predictability for private contracting parties.

[1] Law No. 14.133/2021

[2]CE, 1912, Granits Porphyroïdes) rather than general English dictionaries.

[3] CE, 31 July 1912, Société des granits porphyroïdes des Vosges

[4] TC, 13 October 2014, SA AXA France IARD

[5]Law No. 2010/002

[6]In Marbury v. Madison (1803),  

[7]In Sentencia de 13 de febrero de 1981 (Spain)