- 05 Avril 2023
3th Prize for the Best OHADA Article 2022 ( PME-OHADA-22-03 ) : The commissary pact, effective guarantee of the creditor
Par BATANATA Tchiri-Issar Romaric Joël
Résumé
The observation of the cumbersomeness in the realization of security interests motivated the OHADA legislator to simplify the methods of realization of real security interests., by introducing extrajudicial enforcement mechanisms. It is from this perspective that the commissary agreement allows the creditor to become the owner of the object of the security., on maturity in the event of non-payment, without the intervention of the judge. The clause of the commissary agreement which must be included in an agreement relating to real security, the conditions of its validity as well as those of its opposability must be respected to ensure the effectiveness of its implementation. Gray spots remain, due to the lack of clarity of the provisions of the Uniform Security Act, relating to the default of the debtor, the transfer of ownership or appraisal of the goods subject to guarantee. Other difficulties also concern cases where several creditors compete over the same property or the case of the opening of collective proceedings against the debtor.. It is up to the parties to exercise caution in developing the content of the commission agreement..
Key words
Commissioner's Pact, creditor, efficiency, conditions of validity, opposability, expert, transfer of ownership.