Bibliographie sélective OHADA

ENGLISH SUMMARY: Banks are one of the most important elements in the economic cycle of modem society. As money replaced bartering banks have gradually moved into the pivotal point of the relations between participants in the economic cycle. No project can be realized without money today. On the one hand, there are the investors who, irrespective of the amount, entrust their assets to the banks. On the other hand, there are those whose financial needs require the granting of some form of credit. Banks operating in these contexts clearly bear important responsibilities towards the different parties. A third party, the state, is also interested in a well-functioning banking establishment. Economic stability, without which there can be no political stability, cannot otherwise be ensured. The state is accordingly keenly interested in maintaining the operability of this system. To this end, various laws are made in the respective countries aimed at supervising the banking industry. This work deals with some of the legislation relating to bank supervision in the Federal Republic of Germany and the Republic of South Africa. In the various chapters certain aspects of bank supervision in the two countries are identified, juxtaposed and compared. The reasons for any differences are sought, discussed and where possible explained. From a historical point of view, the two countries developed differently. Nevertheless, the need to regulate this sector through legislative means arose at an early stage in both. Unfortunately, the catalyst for legislative development was mostly some or other financial crisis. Any measures for supervising banks must, to be binding, be constitutional. In this regard much must still be done in South Africa due to the fact that the New Constitution has only been in force since 1996. Thus certain regulations stemming from the Banks Act 90 of 1994 need to be reconsidered in the light of the constitution. Bank supervisory activity is performed by a national institution in both countries. Germany avails itself of an independent authority. However, in South Africa it is one of the tasks of the central bank which has established a specific office for this purpose. Legal and natural persons alike are subject to such supervision. Diverse other government institutions provide support for such supervisory work in both countries. The scope of banking supervision, that is the persons and transactions affected, is broad and also finely meshed. Both systems list a number of banking transactions that are subject to their supervision. This affects all domestic banks and all foreign banks that are domestically active. Access to the banking business is only permitted in both countries after an appropriate license has been granted. The license can be conditional. Moreover, both systems make provision for the revocation of the license in appropriate circumstances. The conducting of banking business without the necessary permission is forbidden in both countries under the threat of legal punishment. It is well recognized in modem society that legal subjects should be protected against the decisions of those who wield state power. The possible remedies of those affected by the decisions of the public authorities responsible for banking supervision in the different countries are investigated in conclusion.

Defence date: 26 October 1998

This is the version of record of a chapter authored by Nancy Gallini and Michael Trebilcock, and published by the University of Calgary Press.

This work considers two broad aspects of consumer law, namely, substantive and practical protection of consumer rights. The former examines the law on consumer protection as contained in the statute books and judicial decisions. The latter deals withthe law in practice. This considers the practical implementation of the various laws on consumer protection by the operative agencies. It also examines the practical effects of these laws on the level of consumer protection. The work is divided into ten chapters.Chapter one gives a survey of consumer protection in different jurisdictions. It also states the research problems, objectives of the study, hypotheses, scope, signi ticance of the work, conceptual frame work and literature review.Chapter two discusses the methodology adopted in this work. Chapter three considers the laws gov.erning dealings in regulated products. These products are food, drugs, cosmetics, medical devices, bottled water, chemicals and hazardous products. It is seen from this chapter that the law makes reasonable provtsfc;ns on the control of regulated products. In contrast, the level of practical protection bas remained low due to weak enforcement system.Chapter four examines the laws which impose further restrictions on dealings in drugs. This reveals that the law adequately controls dealings in drugs . But like the case of laws considered in the preceding chapter, implementation of the statutory provisions remains a problem.Chapter jive examines the functions and activities of the Standards Organisation of Nigeria whose duty it is to prescribe and ensure compliance with product standards. Like the cases of the agencies discussed in the previous chapters, a major problem facing the organisation is the ineffective implementation of its standards.Chapter six discusses the civil liability of an offender to the victim. This chapter reveals that a person whose product causes injury to the person or property of another, is civilly liable to that other person. His liability is without prejudice to his criminalliability. Chapter seven examines the course of action open to a claimant who is not in privity of contract with the defendant. This chapter reveals that such a claimant can sue in the tort of negligence. But his chances of success are greatly limited by the restrictive meaning accorded the term "product defect" in tort law. Proof of negligence also constitutes an almost insurmountable obstacle. The chapter concludes that as a way of getting round the problem of proof of negligence, there is need to introduce strict product liability in selected cases particularly in the fields of pharmaceuticals and articles of food. Chapter eight examines the contractual rights of a consumer/purchaser. This chapter shows that action in contract is of immense benefit to the claimant because he does not have to prove negligence on the part of the other contracting party. In addition, liability is strict since an exercise of due care will not absolve the offender. But this course of action is of limited application because it is not available ta a consumer who is not also the buyer of the product. This chapter concludes like the preceding one that the only solution ta the basic contract requirements is the introduction of strict liability in selected areas. Chapter nine analyses the data on the practical implementation of consumer laws, while chapter ten summarises our research findings and proffers some suggestions.