Bibliographie sélective OHADA

The purpose of this thesis is to investigate to what extent the Consumer Protection Act 68 of 2008 (CPA) influences the common law of sale in South Africa. “Common law of sale” refers to the essentialia of sale (the minimum characteristics that parties must have consensus on to conclude a valid sale). The parties must have consensus on the intention to buy and sell, the things sold and the purchase price. The common law of sale also refers to the common law duties of the parties, the duties of the seller in particular (conversely therefore the rights of the buyer). The primary duties of the seller which will be investigated are: a. the duty of safe-keeping (including and investigation into the passing of benefit and risk doctrine); b. the duty of delivery and transfer of ownership; c. the warranty against eviction; and d. the warranty against latent defects. The primary common law duties of the buyer to pay the purchase price and accept the thing sold are included in the investigation as well. The formalities required in certain sale agreements, that wording must be in plain language as well as the buyer’s cooling-off rights are also investigated. An investigation into the influence of the CPA on the common law of sale in South Africa warrants a systematic framework and modus operandi which are: a. an investigation into the historical background of the common law of sale and its principles in the Roman law and Roman-Dutch law; b. a critical analysis of the position where the CPA is not applicable (the common law position); c. an extensive analysis and critical evaluation of the relevant provisions of the CPA and the influence thereof on the common law of sale; d. a comparative analysis of the appropriate provisions in Scotland and Belgium; e. a conclusion of the influence of the CPA on the common law of sale (whether the particular common law of sale principle is confirmed, amended or excluded in terms of the Act); and f. recommendations (taking into account the comparative analysis) regarding the rectification of uncertainties and ambiguities that arose as a result of the investigation. It is also important to remember that the existing principles of the common law of sale will still be applicable for transactions and agreements which fall outside the application of the Act. The golden rule to keep in mind when investigating the influence of the CPA on the common law of sale is to determine which approach and interpretation will be most beneficial to the consumer.

The thesis analyses the concept ‘fairness’ in consumer contracts regulated by the Consumer Protection Act 68 of 2008, mainly from the perspective of a freedom and fairness orientation. It discusses the evolution of ‘fairness’ as background to a more detailed discussion of the classification of fairness into substantive and procedural fairness. The thesis examines dimensions of fairness, factors which play a role in the determination of fairness, and fairness- oriented approaches in an attempt to formulate a framework for fairness in consumer contracts. The main aspects that should be taken into account to justify a finding of fairness, or to determine whether a contract is fair, are identified. This analysis addresses, too, the extent to which the fairness provisions of the Consumer Protection Act are appropriate (with reference to the law of South Africa, Europe, and England).

The Tanzanian private sector is growing, partly due to the state’s efforts to conform to the global economy. As the economy expands and the National Microfinance Policy of 2001 is realised, more and more credit has been made available to consumers. As a direct consequence of the increase of credit, the number of over- indebted consumers in Tanzania is on the rise. The current debt relief system is regulated by the Tanzanian Bankruptcy Act no. 9 of 1930, a piece of colonial legislation. Unfortunately this law is ineffective, costly and outdated. Some of the problems identified in this study with this debt relief regime include the lack of a cost- effective alternative to bankruptcy and its total reliance on the judiciary, an institution that is itself overburdened and requires reform. The purpose of this study is to make recommendations for the reform of the current debt relief system and propose a debt relief dispensation for consumer debtors in Tanzania that will efficiently cure over- indebtedness. A wide comparative investigation was undertaken in this study of selected common law, civil and mixed legal systems that have substantial experience with the boom in over-indebted consumers now facing Tanzania. A number of solutions were borrowed from these systems that may potentially solve Tanzania’s debt relief problem. One of the main findings of this thesis is that, over time, developed jurisdictions that rely on credit in the private sector appear to be converging on the same type of procedures and moderate philosophies for consumer debt relief. These include less judicial supervision for debt relief procedures, less freedom of choice for over-indebted consumers when it comes to the type of procedures available, and mandatory surplus income repayments for debtors who can afford it. In order to address the problems of the Tanzanian debt relief system, this thesis proposes a complete overhaul of the administration of debt relief procedures in Tanzania and the introduction of a combined alternative to bankruptcy that consists of three joint procedures. A number of amendments are also proposed for the Bankruptcy Act no.9 of 1930. This thesis states the status of legal developments as they were in the selected jurisdictions on 31 December 2012.