The 25 November 2021, the 3rd chamber of the Common Court of Justice and Arbitration, rendered Judgment No. 211/2021 in the case between Mr. IDDI ANGO Ibrahim and the BANK OF AFRICA BURKINA FASO (BOA-BF SA). By this judgment, the Common Court of Justice and Arbitration has established itself as a true court of cassation, ensuring scrupulous compliance with the acts for which it ensures protection.
In effect, in this cause, for the High Court it was a matter of resolving, mostly, two questions of law to know :
Even though the parties to a contract intended to base their agreement on a uniform act, can a judge reclassify this agreement as an innominate contract without violating the contractual freedom of the parties? ?
What are the conditions of validity of an independent guarantee ? By deciding on these questions, the CCJA to reaffirm the sacred character of contractual freedom and at the same time delimit the power of the judge who cannot modify what the parties intended to contract ;
Moreover, she also has, recalled the conditions of validity of an independent guarantee whose acts must be unambiguous.
The consequences of these solutions, whether they protect uniform acts, however, leaves one of the parties to the contract who runs the risk of not being compensated, even though the commitments made by the parties do indeed exist and were undoubtedly aimed at, guarantee an agreement.
By cutting like she did, the Common Court of Justice and Arbitration reaffirms the primacy of uniform acts and exercises rigorous control over them.
2th Prize for Best OHADA Writing 2022 ( PME-OHADA-22-05 ) : The Common Court of Justice and Arbitration is a real court of cassation
Par Sankara Hermann
Résumé
The 25 November 2021, the 3rd chamber of the Common Court of Justice and Arbitration, rendered Judgment No. 211/2021 in the case between Mr. IDDI ANGO Ibrahim and the BANK OF AFRICA BURKINA FASO (BOA-BF SA).
By this judgment, the Common Court of Justice and Arbitration has established itself as a true court of cassation, ensuring scrupulous compliance with the acts for which it ensures protection.
In effect, in this cause, for the High Court it was a matter of resolving, mostly, two questions of law to know :
Even though the parties to a contract intended to base their agreement on a uniform act, can a judge reclassify this agreement as an innominate contract without violating the contractual freedom of the parties? ?
What are the conditions of validity of an independent guarantee ?
By deciding on these questions, the CCJA to reaffirm the sacred character of contractual freedom and at the same time delimit the power of the judge who cannot modify what the parties intended to contract ;
Moreover, she also has, recalled the conditions of validity of an independent guarantee whose acts must be unambiguous.
The consequences of these solutions, whether they protect uniform acts, however, leaves one of the parties to the contract who runs the risk of not being compensated, even though the commitments made by the parties do indeed exist and were undoubtedly aimed at, guarantee an agreement.
By cutting like she did, the Common Court of Justice and Arbitration reaffirms the primacy of uniform acts and exercises rigorous control over them.