Bibliographie sélective OHADA

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.

Little attention is paid to the civil remedies available when infringement of a trade mark or the right to goodwill occurs. Yet, for the owners of ~uch rights, these remedies are of much greater importance than theoretical considerations regarding the nature of the rights or what constitutes their infringement. This thesis analyses the civil remedies for trade mark infringement granted by the South African Trade Marks Act 194 of 1993. In the South African context, any consideration of civil remedies is rendered problematic by the attempted graft of English remedies onto a legal system with a different common-law background. It is, therefore, essential first to trace the English origin and application of these remedies, and then to determine whether each remedy is acceptable in terms of the South African common law. This is necessary, as our courts have previously rejected or adapted English remedies which were unknown to our common law but which Parliament introduced in legislation. The remedies of interdict (or injunction) in final and interlocutory form, compensatory damages, reasonable royalties, and delivery up are analysed from a substantive law and a procedural perspective. The procedural innovation of an inquiry as to damages is also considered. In respect of each remedy, (1) the English roots and development of the remedy are traced; (2) differences of approach in two other Commonwealth jurisdictions, Australia and Canada, are highlighted; (3) the development of the South African equivalent is detailed; and (4) suggestions for the future implementation of the remedy in South Africa are made. In the penultimate chapter, our common law and legislation (including the Constitution of the Republic of South Africa 108 of 1996 ) are measured against the requirements of the Agreement on Trade-related Aspects of Intellectual Property Rights (TRIPS). Recommendations for the effective utilization of each remedy in South Africa are then made. They include suggestions for legislative amendment in respect of delivery up and an inquiry as to damages, and the introduction of statutory damages as an further civil remedy.

This is a collection of essays about the restraint of trade doctrine as laid down in the courts of the United Kingdom and the British Commonwealth. Generally, I will not give an account of the restraint of trade doctrine in the United States of America, for even although each individual state (apart from the civil jurisdictions California and Louisiana) and the federation itself, has a common law system, for reasons peculiar to those jurisdictions, the restraint of trade case law there has become so vast and so confused as to be unsuitable for my purposes. More importantly, however, the common law restraint of trade doctrine in the United Kingdom and the British Commonwealth has been laid down by courts without any significant consideration of the state of the law in the United States. Davies v Davies (1887) 36 Ch D 359, 370 by contrast, the period during which the Privy Council operated as a supra national court of final appeal has resulted in considerable harmony in the doctrine within the British Commonwealth. Even now the House of Lords is influential in Australia and Canada and the influence is increasingly reciprocal. By way of an exception I will discuss the purposes of the anti-trust legislation in the United States. This is necessary because I intend to show that the common law restraint of trade doctrine was not able to be, and was never intended to be, a means of regulating the economy in contradistinction to the United States anti-trust legislation and related legislation in the British Commonwealth. This account is not merely a description of the law relating to the restraint of trade doctrine although I do purport to describe the law. There are other accounts of the restraint of trade doctrine which do that well. Accounts of the restraint of trade doctrine include: Matthews & Adler, The Law Relating to Covenants in Restraints of Trade (London, 2nd ed 1907); Sanderson, Restraint of Trade in English law (London, 1926); Heydon, The Restraint of Trade Doctrine (London, 1971); Trebilcock, The Common Law of Restraint of Trade; A Legal and Economic Analysis (Toronto, 1986); Dean, The Law of Trade Secrets (Sydney, 1990); Mehigan & Griffiths, Restraint of Trade and Business Secrets: Law & Practice (London, 2nd ed 1991); Holdsworth, History of English Law IV (3rd ed, 1945) 343-54, 373-9; VIII (2nd ed, 1937) 56-42. There are other, less detailed accounts in contract law textbooks. The purpose of this dissertation is to describe aspects of the doctrine as it developed between the medieval period and the twentieth century and then to use that account as a basis for an analysis of how the law has taken a number of paths during the twentieth century which cannot be justified by the rules and their justifications which existed in the law prior to that time. Such a development has had important consequences for the restraint of trade doctrine and even the law in general, most of which have been detrimental. I do not intend to give a continuous historical narrative covering the whole of the doctrine. The history has been described before. For example, I do not intend to give a discrete account of the process by which the absolute rule against general restraints of trade gave way to the rule of reason, although I do mention this process where relevant for other purposes. The history, so far as it is relevant, is integrated into each chapter. I will argue that historically the restraint of trade doctrine was a rule or complex of rules, of a certain form and content. The form and content of the rule are important because they bear on the meaning of the class term "restraint of trade" which is an element of the rule. The meaning of that term began to change around the year 1890. Beginning first with certain classes of trade combination, courts began to classify as restraints of trade covenants which did not in fact restrain trade. Then the courts similarly treated the exclusive dealing contract and certain forms of property transaction. Another trend in the law which added to the confusion about the meaning of restraint of trade was the failure by the courts to make definitive findings one way or another as to whether a particular covenant was in restraint of trade. The courts were then faced with a dilemma. The law required a court to refuse to enforce a covenant in restraint of trade unless the covenantee could justify the restraint by presenting evidence to the court from which the courts could assess whether or not that particular restraint was within the reason for the restraint of trade doctrine or not. Such considerations were entirely inapt in the case of covenants which, in accordance with the traditional view, did not restrain trade. Yet if the courts did not validate these contracts, catastrophic consequences would have followed for the parties to such contracts and, indeed, to contract as an institution. To solve the dilemma the courts began to interpret the famous statement of the restraint of trade doctrine by Lord Macnaghten in Nordenfelt v Maxim Nordenfelt Guns & Ammunition Co [1894] AC 535, 565 (HL) literally, rather than contextually. Ultimately this has resulted in the obscuring of the rule underlying the restraint of trade doctrine itself. There were many minor confusions along the way. It is important that the doctrine is coherent and its use consistent with its justifications because it is still a fruitful cause of legal change. In the last year the force of the rule has caused a radical restructuring of Association Football in Europe Bosman’s case. The rule has even penetrated the collective consciousness of the community at large. The broad thrust of the development and the detail will be outlined in the next thirteen chapters.

Theorising again about a topic that has already received a great deal of scientific attention may be viewed, to use some well known words of Camus, as "the ultimately absurd act" (Camus, 1975). Precisely in order to avoid, when dealing with a classic topic, falling into the absurd, or what is only slightly better, into the banal, it is necessary to use afresh methodological and conceptual tools. This should allow one to pose new questions and, finally, open up new intellectual perspectives. Conversely, the distance that one is to cover needs to be not too far removed from current paradigms. Otherwise one may fall into a different kind of trap -that of offering a contribution which is interesting but totally useless, as it were, for the purpose of shedding new light on the ongoing debate. In fact the main trigger for embarking on this project was a reaction to what were current legal critiques of the principle of subsidiarity at a given moment. Though I conceded that a critical outlook should be taken as regards subsidiarity, and no mere review of the principle in legal-technical terms, the standard critique left me with the bitter taste of scientific dissatisfaction. In my view it seemed, at best, to entirely miss the point as regards the issues, that were raised by the introduction of subsidiarity into the constitutional order of the Community, which, in turn, implied that the answers that were given were also clearly unsuitable. I therefore underwent the effort of giving an alternative critical reading of the principle of subsidiarity, the result of which constitutes the thrust of this thesis. Yet before entering into the following critique, it is important to make, by way of introduction, a number of remarks concerning (i) the genealogy of this thesis; (ii) the method; (iii) conceptual issues; (iv) the exposition of the main research hypothesis according to which this work shall be conducted; and (v) the structure of this thesis.