Article 1.1
Freedom of Contract
Parties are free to enter into a contract and to determine its content.
Article 1.2
Pacta sunt servanda
Contract parties are bound to perform the agreed obligations according to contractual terms.
Article 1.3
Declarations and notices
1. Declarations and notices of the parties must be given by appropriate and effective means. They will be effective when they reach the addressee.
2. A declaration or notice reaches the addressee immediately when it is delivered to it is made orally and in its presence.
3. A written declaration or notice reaches the addressee when it is delivered to its place of business or mailing address, or when it is received in its fax receiver or e-mail server.
Article 1.4
Computation of time
1. When a period of time is expressed in days, the day of the contract, event, decision or notice from which the period begins is not computed.
2. When a period of time begins from a determined day, such a day is computed within the period.
3. Periods of time expressed in months or years shall end on the day of the last month or year corresponding to the same day fixed for the beginning of that period. When the final month does not include that day, the period shall end the last day of the month. When the period is expressed in months and days, months are firstly computed and days are computed afterwards.
4. Unless otherwise stated, periods of time set by the parties refer to natural days, including official holidays and non-working days. When the period of time for performance ends on an official holiday or non-working day at the place of performance or at the place where the party who has to perform is established, it will be presumed to be extended until the next working or business day.
5. The time zone will be that corresponding to the place of establishment of the party who sets the time. If setting of time is not attributable to any party, as to the performance of obligations the time zone will be that corresponding to the place of performance or, failing that, to the place where the party who has to perform is established.
Article 1 of the OHADAC Principles affirms the freedom of contract principle. This is a purely programmatic rule that recognises the private autonomy principle as the basis of contract law.
Freedom of contract is a principle generally recognised in comparative law. In some civil law systems, it is expressly established by acknowledging the freedom of the parties to conclude all contracts, pacts and agreements that they deem appropriate (e.g. Articles 1.547 Honduran Civil Code; 1.839 Mexican Civil Code; 2.437 Nicaraguan Civil Code; 1.106 Panamanian Civil Code; 1.207 of the Puerto Rican Civil Code). The same rule can be found in Article 2 of the Draft Project for Reform of the Law on Obligations prepared by the French Ministry of Justice in 2013 and in international texts harmonising contract law [Articles 1.1 (UP); 1:102 (1) (PECL); II-1:102 (DCFR); 1.1 (CESL). Freedom of contract is also the normative and philosophical principle (will theories) of contract law under common law [Printing and Numerical Registering Company v Sampson (1875), LR 19 Eq 462, 465], where a more liberal approach comprises the fundamental respect for contractual freedom and the minimum of governmental interference with this freedom.
As a programmatic principle, the value of freedom of contract is relative. The wording of this principle in civil law systems is evidence of this relativity. The freedom of contract of parties is restricted by the obligation to follow the law, good morals, public policy and even usage. This limitation is shared by common law systems. Therefore, a common principle comprises the possibility of restricting freedom of contract on the fundamental grounds of the public interests at stake. These restrictions affect the legality of the contract and its object, restrictions of its object in some commercial branches reserved for State monopoly, the existence of public policy statutes on trade protection and free competition, the protection of some parties to the contract or the requirement of certain standards of commercial morality. The mandatory nature or impossibility of derogation of certain rules guarantees freedom of contract as a public interest, insofar as free will is not allowed on rules on valid consent and its voiding reasons.
As mentioned above in the comment to paragraph III of the Preamble, the OHADAC Principles are subject to public policy statutes of national, international and supranational origin that may be legitimately applied on the ground of their geographic proximity and their international public policy scope. The impossibility of derogation of some mandatory rules of the Principles has also been noted.
Finally, it must be observed that the OHADAC Principles are applicable only when the parties have so agreed. Therefore, in cases brought before national courts, the application of the OHADAC Principles will derive from the parties' agreement, the enforceability of which is directly based on the will of the parties. This means that the incorporation by the parties of the OHADAC Principles as an agreement based on the freedom of contract is subject to the limitations imposed on this freedom by the national law applicable to the contract, which will fix the mandatory framework and permit the derogation by the parties. Hence the important point mentioned above that the parties must add the applicable national law of their choice when they adopt the OHADAC Principles.
In arbitral procedures, the OHADAC Principles can work as applicable law on the merits with no submission to any national law. However, as in cases before national courts, the provision included in paragraph V of the Preamble will be applied in any event, since, regardless of the law applicable to the merits, courts as well as arbitrators may take into account public policy statutes from other legal systems closely linked to the contract, in particular the law of the forum and the law of the place of performance of the contract.
Commentary