CPA F1.2 INTRODUCTION TO LAW Study Manual

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INSTITUTE OF
CERTIFIED PUBLIC ACCOUNTANTS
OF
RWANDA
Foundation F1.2
F1.2 INTRODUCTION TO LAW
First Edition 2012
This study manual has been fully revised and updated
in accordance with the current syllabus.
It has been developed in consultation with experienced lecturers.
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CONTENTS
Study
Unit
Title Page
Introduction to the Course
4
1
General Introduction to Law
8
Definition of Law
8
Purpose of the Law
9
Law & Morality
9
Law & Ethics
10
Substantive and procedural law
10
Criminal and Civil Law
10
Main divisions of Law
11
Characteristics of a Legal Rule
13
Sanctions of a Legal Rule
15
Major legal systems (families) of the world
15
2
Sources of Law
17
Material Source of Law
17
Formal Sources
18
Sources of Rwanda Business Law
23
3
Administrative Law
25
Meaning
25
Separation of Powers
25
4
The Business Disputes Resolution
31
Review of key constitutional provision regarding the Court System
31
Rwandan Commercial Justice System
31
Arbitration
36
5
Law of Persons
42
Juridical or legal personality
42
Legal identification of physical persons
44
6
Law of Tort
50
The liability for personal acts
50
Liability for acts committed by others
52
7
Law of Contract
56
General overview on Contract
56
Contract formation
60
End of Contractual Obligations
77
8
Sale of Goods
89
Definition
89
Essentials of contract of sale
89
Distinction between a sale and an agreement for sale
90
9
Agency
93
Agency: Definition and key features
93
Agent
93
Creation of agency
95
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Study
Unit
Title Page
10
Insurance
97
Definition of the Contract of Insurance and Insurer
97
Common Types Insurance and their Role
97
Categories of Insurance Business
99
11
Negotiable Instruments
100
Definition and distinct characteristics of negotiable instruments
100
Different kinds of negotiable instruments
100
12
The Law of Property
116
Definition of property
116
Real Rights
122
Overview of the 2005 Organic Law on land use and management in
Rwanda
131
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Stage: Foundation 1
Subject Title: F1.2 Introduction to Law
Aim
The aim of this subject is to ensure that students have an understanding of the law relating to
the accountant and the ability to identify problems that require the advice of a legal
professional.
Business Laws as an Integral Part of the Syllabus
The legal principles learnt in this subject are relevant to students throughout their
professional accounting studies. In particular Introduction to Law is an essential foundation
for the study of Company Law.
Knowledge gained from this subject will also be particularly relevant in the further study of
Auditing, Audit Practice and Assurance Services, Financial Accounting, Financial reporting,
Advanced Financial reporting and Strategy and Leadership.
Learning Outcomes
On successful completion of this subject students should be able to:
• Distinguish between and describe sources of law
• Interpret, describe and discuss aspects of the law of property
Interpret, describe and discuss aspects of the law of contract and of
sale of goods and supplies of services
• Interpret, describe and discuss aspects of the law relating to negotiable
• instruments and insurance
• Recognise if and when more specialist legal knowledge is required
and identify the source of that expertise.
• Describe, discuss and explain aspects of company law relating to the
structure of business entities and of their commercial relationships.
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Syllabus:
1. Nature, Purpose and Classification of Law
• Nature and purpose of law
• Classification of Law
• Law & Morality
• Ethics and the Law
2. Sources of Law
• The Constitution
• Legislation
• Statutes of general application
• Substance of common law and doctrines of equity
• Judicial precedent
3. Administrative Law
• Separation of Powers
• Natural Justice
• Judicial control of the Executive
• Administrative Legislation
• Arbitration
4. The Court System
• Courts and tribunals: composition, jurisdiction
• Structure, composition and jurisdiction of courts justice
• Subordinate Courts
5. Law of Persons
• Legal Personality
• Types of persons: natural person, artificial person
• Sole proprietorships
• Partnerships
• Unincorporated Associations
• Limited Companies
6. Law of Tort
• Nature of tortuous liability
• General defences in the law of tort
• Negligence
• Nuisance
• Trespass
• Vicarious liability
• Occupier’s liability
• Limitation of action
• Defamation
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7. Law of Contract
• Nature of a contract
• Classification of Contracts
• Formation of Contracts
• Terms of a contract, conditions, warranties and exemption clauses
• Vitiating factors: mistake, misrepresentation, duress, undue influence, illegality, illegal
contracts
• Discharge of contract
• Remedies for breach of contract
• Limitation of actions
8. Sale of Goods
• Nature of the Contract
• Formation of the Contract
• Terms of the Contract
• Transfer of property in goods
• Rights and duties of the parties
• International contracts of sale
9. Agency
• Nature and creation of agency
• Types of Agents
• Authority of an agent
• Rights and duties of the parties
• Termination of agency
10. Hire Purchase
• Nature of the contract
• Formation of the contract
• Terms of the contract
• Rights and duties of the parties
• Termination of the hire purchase contract
11. Insurance
• Nature of the contract
• Formation of the contract
• Principles of Insurance
12. Negotiable Instruments
• Nature and characteristics
• Negotiability and transferability
• Types: cheques, promissory notes, bills of exchange
• Rights & Obligations of the parties
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13. The Law of Property
• Definition of property (real and personal property: movable and immovable property,
intellectual and intangible property, trademarks, copyrights and patents)
• Ownership of property
• Freehold and leasehold interests
• Leases
• Mortgages and charges
• Foreclosure
• Rights & Restrictions on another’s property
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STUDY UNIT 1. GENERAL INTRODUCTION TO LAW
SECTION 1. MEANING OF THE LAW AND OTHER KEY CONCEPTS
A. DEFINITION OF LAW
For a better understanding of the course, some key words need to be defined, the first of these
being ‘Law’ itself. The word ‘Law’ can have several meanings depending on one’s point of
view. However, two of them are the most important as far as the definition of Law is
concerned. The rest are complementary and they are useful as well because the word ‘Law’
can be viewed in different ways. Also in Law, there is generally a presumption that where a
clause or rule refers to he or she (similarly, him or her) either refers to the other inclusively.
Law, in its general sense, is a set of rules of conduct prescribed by a controlling authority and
having a binding force. The phrase ‘prescribed by a controlling authority’ means that the
controlling authority declares with authority that something should be done or should not be
done or that a rule should be followed. Law having a binding force means that the law is that
which must be followed by citizens and where the people don’t abide by it, sanctions are
attached. Sanctions mean the penalties or punishments for someone who has done wrong or
who has not respected the law. Having a character of a rule of conduct implies that it
commands what is right and what is wrong.
Law, in its second meaning, is referred to as a scientific subject studying the wide and
heterogeneous body of rules regulating human conduct. In this case, it is also called the
Science of Law.
In another perspective, law is referred to as objective or subjective. Objective law is a set of
rules governing persons’ conduct in a society, enacted and sanctioned by the public authority.
It is in this way that we say that Rwandan law, Belgian law etc., or criminal law, Civil law.
Subjective law refers to the prerogatives or rights bestowed (given) to a person by the
objective law ( above). These are rights or privileges belonging to a particular person or a
group because of their importance or social position. A human being is endowed with a
number of rights that he or she enjoys in his relationship with others; for example, a human
being has the right to property, the right to privacy, freedom of speech etc. Subjective law is
what we would call subjective rights. The reason why we call it a subjective right is because
a right cannot exist on its own. It needs somebody that has the right. It is an issue of who
owns what. The one who owns is the subject and what is being owned is the right.
In another way, law is said to be positive or natural positive law or legal position meaning a
hierarchy of laws made by man, applicable in a given place at a given time. This is manmade
law. Rwandan positive law is the whole body of different rules applicable in Rwanda today.
Natural law is a body of ideal rules of human conduct considered as superior to those of
positive law and compulsory even to the legislator. Natural laws are usually used to justify
the legal rule (positive law) this is because every single law is related to a pure moral law,
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which is to say that a legal rule is a result of a moral law. An example is that the legal rule
(positive law) against murder originated from the natural law of ‘don’t kill’ which has been in
existence since time immemorial.
Summarizing this development on the definition of the law, one can say that Law might be
understood as a set of rules which are generally obeyed and enforced within a politically
organised society. In other words, law is a body of rules for the guidance of human conduct
which are imposed upon and enforced among the members of a given state. The law is really
necessary in each society.
B. PURPOSE OF THE LAW
The establishment of laws in society is necessary to protect the rights of individuals and to
ensure the good order, functioning and survival of the society. In effect, what the law is
trying to do is to provide answers to the myriad of everyday problems that can arise in
society. The solutions to such problems must accord with objectives that are judged by the
community to be socially desirable. The problems arise in the first place because of the
conflicting interests of individuals and groups within the society and the necessity to ensure
the functioning and survival of the society itself. The more civilized a community becomes,
and the greater the industrial and scientific progress it makes, the more laws it must have to
regulate the new possibilities it is acquiring.
What the law does, in attempting to prevent and resolve conflict in society, is to:
- control social relations and behaviour;
- provide the machinery and procedures for the settlement of disputes;
- preserve the existing legal system;
- protect individuals by maintaining order;
- protect basic freedoms;
- provide for the surveillance and control of official action;
- recognize and protect ownership and enjoyment of the use of property;
- provide for the redress (compensation) of harm;
- reinforce and protect the family;
- facilitate social change.
C. LAW AND MORALITY
There is a connection between legal laws laid down by a state and certain other norms of
behaviour known as laws of morality. From a legal perspective the essential difference
between these two sets of rules exists in their respective enforcement. Legal rules are
enforced in the courts. Rules of morality depend for their observance upon the good
conscience of the individual and the force of public opinion. In any society it is usual to find
the rules of morality observed by the majority of its members reflected in the legal laws of
that society. The contents of morality, or ethics, and law overlap to a great extent, e g murder,
theft and slander; but there are many rules of morality and ethics which the law does not seek
to enforce, such as the commandment to honour our parents; and many legal rules which are
not intrinsically moral, such as the husband’s general liability to pay tax on his wife’s
income.
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D. LAW AND ETHICS
Ethics (also known as Moral Philosophy) is the science of the rules of moral conduct which
should be followed as being good in themselves. There is a close relationship between law
and ethics, but there are important differences.
First of all, whereas law is enforced by the organs of the state, ethics are not. While the
commands of the law are imposed from without (heteronymous) and enforced by sanctions
primarily exterior, the final decision in moral issues is left to each man’s personal conscience,
and the sanctions lie in one’s own heart (save that, where a rule of ethics coincides with one
of positive morality, public opinion may provide a sanction). Secondly, law concerns itself
primarily with the external behaviour of a person, his overt acts, being interested in the state
of his mind, his intention or his motive as a rule only where it manifests itself in an act.
Ethics on the other hand, concerns itself primarily with the state of a person’s mind, with his
thoughts and desires, and is interested in his acts in the main only in so far as they reveal the
state of his mind.
Thirdly, whereas law imposes its commands in the interests of the community, the laws of
ethics are imposed for their own sake, to achieve virtue. While the Law aims at the doing of
justice and the maintenance of peace and order in the community, the aim of ethical theory is
the perfection of character; institution of law has to do with the regulation of conduct.
To a large extent law and ethics overlap, but they do not coincide.
SECTION 2. CLASSIFICATION OF LAW
A. SUBSTANTIVE AND PROCEDURAL LAW
Substantive law sets out the rights and duties governing people as they act in the society and
specifies remedies to back up those rights. Duties tend to take the form of a command. ‘’Do
this’’ or ‘Do that’ or ‘Do not do that’. For example, the Rwanda labour code tells employers
that they must not discriminate amongst people in hiring and employment on the basis of
race, colour, religion, sex, etc. substantive law also establishes rights and privileges, e.g.
freedom of speech, the right to self-defence.
Procedural law establishes the rules by which substantive law is enforced. It does not define
rights or duties, but merely implements them. Rules as to what cases a court can decide how,
a judgment of a court is to be enforced are part of procedural law.
B. CRIMINAL AND CIVIL LAW
Criminal law consists of rules prohibiting anti-social conduct as well as certain deviant
behaviour. It aims to shape people’s conduct along lines which are beneficial to society, by
preventing them from doing what is bad for society. In Rwanda as elsewhere, these
prohibitions are listed in the penal code and a number of subsidiary legislation. Also forming
part of the criminal justice system are courts, which adjudicate questions of criminal liability,
as well as the police force and other enforcement agencies which exist not only to maintain
law and order but also to detect and prosecute violations against the criminal law. It is the
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society through Government employees called public prosecutors that bring court action
against violators. If a person is found guilty of the crime such as theft, the person will be
punished by imprisonment and or a fine. When a fine is paid, the money goes to the side of
the government, not to victim of the crime.
Civil law lays down rules, principles and standards which create rights and duties and
specifies remedies to back up those rights. The duties are owed by one person (including
corporations) to another. Actions for the breach of civil duty must be brought by the injured
party himself or his representative. Generally, the court does not seek to punish the
wrongdoer but rather to compensate the injured party for the harm he or she has suffered. For
instance, if someone carelessly runs a car into yours that person has committed a civil wrong
(tort) of negligence. If you have suffered damages you will be able to recover to the extent of
the damages suffered.
Note that although civil law does not aim to punish, there is an exception. If the behaviour of
someone who commits a tort is outrageous, that person can be made to pay punitive damages
(also called exemplary damages). Unlike a fine paid in a criminal case, punitive damages go
to the injured party.
Sometimes, the same behaviour can violate both the civil law and the criminal law. For
instance, a person whose careless driving causes the death of another may face both a
criminal prosecution by the state and a civil suit for damages by survivors of the deceased. If
both suits are successful, the person would pay back society for the harm done through a fine
and or a sentence, and compensate the survivors through the payment of the money damages.
C. MAIN DIVISIONS OF LAW
Broadly, law can be divided into two broad categories
1. International law
This is sometimes called the law of nations, and consists of rules governing the relations
between states. The basic principles are recognition of the sovereign state, known as pacta
sunt servanda (Latin for "agreements must be kept"). Public international law is the most
well-known branch of International law which regulates legal relations between states and the
manner in which international organizations operate. International law is the set of rules
generally regarded and accepted as binding in relations between states and nations. It serves
as the indispensable framework for the practice of stable and organized international
relations. International law differs from national legal systems in that it only concerns
nations rather than private citizens. National law may become international law when treaties
delegate national jurisdiction to supranational tribunals such as the European Court of Human
Rights or the International Criminal Court. Treaties such as the Geneva Conventions may
require national law to conform.
International law is consent based governance. This means that a state member of the
international community is not obliged to abide by international law unless it has expressly
consented to a particular course of conduct. This is an issue of state sovereignty.
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The term "international law" can refer to three distinct legal disciplines:
• Public international law, which governs the relationship between provinces and
international entities. It includes these legal fields: treaty law, law of sea, international
criminal law, the laws of war or international humanitarian law and international
human rights law.
• Private international law addresses the questions of (1) which jurisdiction may hear a
case, and (2) the law concerning which jurisdiction applies to the issues in the case.
• Supranational law or the law of supranational organizations, which concerns regional
agreements where the laws of nation states may be held inapplicable when conflicting
with a supranational legal system when that nation has a treaty obligation to a
supranational collective.
The two traditional branches of the field are:
• jus gentium — law of nations
• jus inter gentes — agreements between nations
2. National law
This is the law of a particular country and it is divided into various branches:
a) Public law
Public law is that branch of the law concerned with the organization of the state and state
agencies and corporations as well as their relations with private individuals. Constitutional
law, tax law, public finance, public liberties, administrative law, criminal law is all public law
subjects.
b) Private law
Private law on the other hand, is that branch of the law which governs the relationship of
individuals inter se. There are divisions in this branch of law:
- Law of persons (including family law): This branch of law deals with the legal status
of natural persons, such as minors and insane persons, and involves factors
influencing capacity, such as age, marriage and nationality. Family law deals with the
law of domestic relations and the legal rules for family relationships, such as
marriage, divorce, guardians.
- Law of “things”. This branch is divided into categories:
Law of property: this is a branch of law that is concerned with real rights and
deals with ownership and possession, and various real rights in a thing
belonging to another, such as servitudes, mortgages, pledges and liens.
Law of succession: This deals with what happens to a person’s estate upon
death. In testamentary succession, the deceased leaves a valid will. In intestate
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succession, there is no will at all, or part of the estate of the deceased was not
disposed of by will.
Law of obligation: This branch of law deals with personal rights, and is
divided into two categories.
Law of contract: a contract is defined as a binding agreement between two or
more persons by which one or more of them agrees to give something, or to do
something, or not to do something. It is therefore an agreement intended to
create or extinguish personal rights between persons.
Civil liability. This is a branch of general duty imposed by law which will
ground an action for damages by any person to whom the duty was owed who
has suffered harm in consequence of the breach. The duty is owed to persons
generally and is imposed independently of the will of the parties.
Business law: There is no simple categorization of laws that fall under
business law, since much of this law also falls into other categories. However,
business law may include laws relating to insurance, labour law, bankruptcy,
and agency, sale of goods, taxation, negotiable instruments, company law,
carriage, and law of banking.
- Procedural law: This branch of law deals with the rules that govern how actions may
be brought under the law. There are two divisions:
a) Civil procedure: This sets out the rules of how persons can bring action
against others in a civil court.
b) Criminal procedure: This sets out procedure on how a criminal court
operates, the powers of judges in criminal matters, and how persons can be
brought before a criminal court.
- Law of evidence: This sets out the rules of how evidence may be introduced and
proved in a civil or criminal court.
- Conflict of laws: This branch of law prescribes rules for settling an issue before a
Rwandan court if the events at issue are so connected to a foreign country that the
foreign country’s system of law has to be considered in resolving the matter.
SECTION 3. CHARACTERISTICS OF A LEGAL RULE
A legal rule is binding, meaning that it requires you to do something or not to do something.
‘Binding’ also means that it is supposed to be followed by all citizens.
A legal rule is binding in time and space. On the one hand, a legal rule is said to be binding in
space when it is for example applicable to Rwanda and not to Britain. On the other hand, a
legal rule is binding in time, when it exists from a certain date to a certain date. It is possible
that a public (state) authority can vote for a law and it exists for two years and it is then
replaced by a new one.
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A legal rule is always general. This means that it applies to persons in general but not to a
particular individual. A legal rule cannot regulate one specific person. A law which regulates
one person is not a legal rule. That law can’t or doesn’t exist.
However, a legal rule can apply to a certain class of individuals. Some rules are applied to
some specific categories of people. This is the diversification of rules. An example is when
a law can apply to men and women doing military service, people doing commercial
activities or to employers.
A legal rule is permanent. It means that it is applicable or not interrupted between its
inception and its end. This characteristic of permanency of a legal rule refers to its
applicability during its life (its existence).
A legal rule can be private or public. Private law is a body of legal rules that regulate private
individuals and their relations. Public law is that which regulates relations between private
persons and the public (state) authority.
A legal rule generally regulates human conduct. This is why it is general and abstract (it is
concerned with general ideas or principles rather than specific issues)
A legal rule normally means a general and abstract provision stipulating how beings should
behave. The generalizing and impersonality of a legal rule are an important guarantee against
arbitrariness (unfairness)
A legal rule also distinguishes itself from other rules by the nature of its sanction. The
sanction of a legal rule is exercised by the public (state) authority. The phrase ‘sanction’ here
should be understood as the official permission, approval or acceptance of a legal rule which
is the duty of the state (authority)
On the other hand, an ethical rule (principles about what is right and wrong) bears an internal
sanction. This means that it is the internal conscience which leads someone to decide what is
right (what to do) and what is wrong (what not to do)
An ethical rule can also bear the social sanction but not the one exercised by a public
authority. This means that it is society which accepts and approves the ethical rule. It is clear
that the law cannot rely on such a sanction (of the society) because of its inefficiency to
impose respect and order in the society.
As to religious rules, they are applicable to believers and are sanctioned by church leaders,
which are also different from legal sanctions because they come from a public authority and
are vested with coercive force.
However, it is worthy to mention that, if one of the ethical or religious rules is at the same
time sanctioned by the public authority, it becomes a legal rule even if it is still and ethical or
religious rule. This is why some legal rules are also ethical rules, creating some confusion
between law and ethics.
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SECTION 4. SANCTIONS OF A LEGAL RULE
There are three main types of sanctions attached to a legal rule:
• Criminal sanctions
• Civil sanction
• Disciplinary sanctions
A. CRIMINAL SANCTIONS
Criminal sanctions are applied when the legal rule that was violated is concerned with the
public interest (the social order) In this case; the violation is held to be an offence or
infraction. Sanctions or punishment in the case of a criminal conduct (offense) do range from
some francs of fine to the temporary and life imprisonment and the death penalty.
B. CIVIL SANCTIONS
Civil sanctions concern violations of a legal rule protecting private interests. The violation in
this case is concerned to be an attack on individual interests protected by the violated rule.
Civil sanctions aimed at restoring the situation prevailing before the violation. They are also
referred to as damages or reparations.
C. DISCIPLINARY SANCTIONS
Disciplinary sanctions are such as those extended to employees of the civil service, judges
and other magistrates as well as soldiers who do not conform to the duties of their functions.
These sanctions range from the warning, temporary suspension and in extreme cases the
exclusion from service.
SECTION 5. MAJOR LEGAL SYSTEMS (FAMILIES) OF THE WORLD
Every country in the world has its own laws and sometimes laws co-exist within the same
state. Despite these variations laws can be classed into types under a limited number of
general categories. The following legal systems have been identified in the world-: The
Common law tradition, the Civil law or Romano- Germanic tradition; the Socialist law
tradition and Muslim law tradition.
a) Common law system. The common law family embraces the law of England
and legal systems of the English type. Its wide expansion throughout the world
came as a result of colonization or expansion. Most English-speaking
countries in the world are common law jurisdictions. The essential features of
the common law system are the following. It is basically judge made law. The
common law was formed primarily by judges who had to resolve individual
disputes. Secondly, the legal rule in the common law system is one which
seeks to provide the solution to the case in hand. It does not seek to formulate
a general rule of conduct.
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b) Civil law system. Originating from continental Europe the civil law system
has spread to the countries of Latin America, Francophone and Lusophone
African countries, the countries of the near East, Japan and Indonesia.
Colonization and voluntary reception contributed for this wide spread. French
law stands out as the prototype of the civil law systems of laws. This is so
because the Napoleonic codes have served as model codes for other countries.
The main features of the civil law system are following. Firstly all civil law
jurisdictions adopted the legal technique of condition. Secondly, the legal rule
seeks to formulate a general rule of conduct as opposed to address the case in
hand (cf Common Law).
c) Socialists legal system. Prior to 25th October 1917 (the October Revolution)
Russian law could be said to belong to civil law family. Since then, law in
Russia has taken a different path based on Marxism-Leninism. So that today, it
is current to speak of socialist legal theory; a socialist law with its own
distinctive structure and system of administering justice. The primary function
of Soviet law is to organize the nation’s economic forces and to transform the
behaviour and attitude to an infringement on the interests of private persons or
an insult to the code of morality. This position is bound to change when states
previously subject to soviet law have adopted European Union market
economic policies (capitalism).
d) Muslim legal system. Muslim law is not an independent branch of knowledge
or leaning. It is only one of the facts of Islamic religion itself; Islam is first of
all a religion, then a state, and finally a culture. The Islamic religion includes,
firstly, theology which established dogma and states exactly what a Muslim
must believe. Secondly It includes the ‘sharia’ (‘the way to follow’) which
lays down rules of behaviour for believers. Since Muslim law is an integral
part of the Islamic religion no authority in the world is qualified to change it.
Page 17
STUDY UNIT 2. SOURCES OF LAW
There are two kinds of Sources of law: material and formal sources.
SECTION 1. MATERIAL SOURCE OF LAW
A. DEFINITION.
The material sources are the sources of inspiration of law. In other words, it is what is at the
origin of the legal provision.
There are, for example, historical sources. The ‘right’ keeps the memory of its past, it is
marked by a rather great continuity, a rather great stability. On certain essential questions
(contract law, right of the responsibility, etc.), the applicable rules come to us from the old
right (the canonical right, Roman law, habits). The historical sources are significant.
Concurrently to this core, there is also a very great mobility of the right. The Parliament votes
each year on tens of laws. Jurisprudence evolves/moves also rather quickly. It is not thus
enough to know the history of the right, even if this one is significant.
It is necessary to distinguish two types of sources: material sources and formal sources.
B. VARIOUS MATERIAL SOURCES
1. Social standards
The ‘right’ very often endeavours to re transcribe social rules to transform them into legal
provisions. Example: the question of the homosexual couples and its legal recognition:
gradually society admits the existence of the homosexual couples and more and more
reserves a legal framework for them. , today, the PACS (Civil Pact of Solidarity). Of course,
the right is not always in phase with society, there can sometimes be a rather long time
between the evolution of manners and the evolution of the laws (e.g. 1975 only: lifting of the
prohibition of abortion).
2. The economic theory
More and more economic science takes importance in our society and more and more the
right takes as a starting point the economic theory, p. ex.1 for tax or revenue duty, the
environmental right, etc.
3. Religions
They play a rather weak and indirect role, today in France, primarily through the historical
tradition. It is not the case in other countries of the world (p. ex.: Muslim countries).
1 P ex. Per example or for example and is the same as e.g.
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C. VALUE OF THE MATERIAL SOURCES
The material sources are, themselves, never obligatory. They inspire the legal provisions, but
they are not themselves legal provisions.
They can be however taken into account to interpret a legal provision and they can clarify the
direction.
SECTION 2. FORMAL SOURCES
We have two main types of formal sources of law. Obligatory and Auxiliary sources
A. OBLIGATORY SOURCES OF LAW
These are the principal sources of law. In a narrow sense, laws are statutes enacted by the
parliament and promulgated by the president of the Republic.
In a broader sense, the Law mean all legal rules of written law formulated in a general way
by means of exercising legislative power or even executive power.
The laws have a general impact, emanating from public power and are obligatory for all
individuals found in a given society.
Here, we have national laws at the country level, and international laws on the international
level.
We will first examine national laws.
1. SOURCES OF NATIONAL LAWS
The laws are ranged, according to their hierarchy, as following:
- The constitution;
- The organic law;
- The ordinary law;
- The Decree law, etc.
1.1. The constitution
At the national level, the constitution comes at the first position. The constitution is a set of
rules which form the fundamental law of a state with which all other laws have to be in
conformity. This means that when there is a conflict between constitutional provisions and
any other law of the country, the former prevails.
For G. Burdeau, the constitution occupies a central place in a system of the rule of law. A
certain philosopher M. Kamto wrote:
“A democracy should not be a government by peoples, but a government by the law”. This is
what is called the rule of law. In this sense, it coincides with a “democratic state” on
condition that “the law really expresses the general will of the public”.
Rwanda has only one constitution, which was adopted through the referendum of 26th May,
2003.
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1.2. The organic laws
Besides the constitution, there are organic laws, which rank immediately below the
constitution. Within the hierarchy of laws, organic laws come after the constitution.
An organic law is adopted with a view to specifying or completing the constitution and other
laws. There are organic laws in Rwanda. This is the case of the organic law No 08/96 of
30/08/1996 on the organization of prosecutions of crimes constituting the crime of genocide
or crimes against humanity committed between 1st October 1990 and 31/12/1994, the organic
law on the organization and functioning of Gacaca jurisdictions, and so many others.
According to 93(6) of the Rwandan constitution, organic laws shall be passed by a majority
vote of three fifths of the members present in each chamber of Parliament.
Organic laws have a legal force superior to ordinary laws. It is the constitution, which
determines the areas reserved for organic laws. We can cite the:
- Conditions of acquisition, retention, enjoyment and deprivation of Rwandan
nationality (art. 7 const.)
- The organization of education in Rwanda (art. 40 const.)
- The modalities for the establishment of political organizations, their functioning, the
conduct of leaders, the manner in which they shall receive state grants as well as the
organization and functioning of the forum of political organizations (art. 57(2) const.)
- The internal regulations concerning each chamber of parliament (art. 73 const.) i.e.
each chamber of parliament shall adopt an organic law establishing its internal
regulations.
- The conditions and the procedures by which parliament controls the actions of the
government.
- The organization and jurisdiction of courts.
1.3. Ordinary laws
Ordinary laws, which are most frequent, are voted by the absolute majority of seating
parliamentarians of each chamber. It is the constitution that determines the relevant areas for
ordinary laws. These areas are many compared to those of organic laws. The quorum required
for each chamber of parliament is at least three fifths of its members (art.66(1) const.).
1.4. Decree Law
In case of the absolute impossibility of parliament holding session, the president of the
republic during such period promulgates decree laws adopted by the cabinet and those decree
laws have the same effect as ordinary laws (art. 63(1) Const.).
These decree-laws become null and void if they are not adopted by parliament at its next
session. This is in conformity with article 63(2) constitution.
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1.5. Orders of Presidential, prime ministers and other public authorities.
1.5.1. Presidential orders
The president of the republic exercises his functions as the head of the executive Power by
way of Presidential Decrees.
According to article 112 of the constitution, the President of the Republic shall sign
presidential orders approved by the cabinet, and the prime minister, ministers, and ministers
of state and other members of government responsible for their implementation countersign
these orders.
1.5.2. Orders of the Prime minister and others public authorities
The prime minister signs orders of the prime minister relating to the appointment and
termination of senior public servants mentioned by article 118(10) of the constitution.
Ministers, ministers of state and other members of cabinet implement laws relating to matters
for which they are responsible by way of orders (art.120 (i) const)
The prefects of provinces can enact administrative and police regulations (art 21 of the law
no 43/2000 concerning the organization and functioning of the province) in the same way, the
District council has the power to enact the regulations of the District in the areas of politics,
security, taxes (art23 of the l aw no 04/2001 of 13/1/2001 concerning the organization and
functioning of the province) in the same way, the District council has the power to enact the
regulations of the District in the areas of politics , security , taxes ( art.23 of the law
no.04/2001 of 13/1/2001 concerning the organization and functioning of the District).
2. SOURCES OF INTERNATIONAL LAW
The sources of international law are actually the same as the sources of public international
law which were discussed earlier. Because these sources were elaborated in detail, not much
detail will be provided under this section. Mention can just be made that the classical
formulation of sources of international law is article 38 of the statute of the international
court of justice. The article sets out four sources and these are:
- International conventions, whether general or particular, establishing rules expressly
recognized by contesting states;
- The general principles of law recognized by civilized nations;
- International customs, as evidence of a general practice accepted as law …. Judicial
decisions and the teachings of most highly qualified practioners of law in various nations, as
subsidiary means for the determination of rules of law.
B. AUXILIARY SOURCES OF LAW
The auxiliary sources of law are jurisprudence, doctrine, general principals of law and equity.
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1. Custom (as a source of law)
A custom is generally defined as a set of a people’s way of doing things which has acquired
an obligatory force in a given social group and which is practiced over a relatively long time
period. Customs are practices or usages of a given society. Customary law is unwritten. It has
to be considered as legally binding on (obligatory by) the people in the society.
A custom is not created as a written law, a unique act, but by a repetition of similar practices
especially with the conception that it has a binding (obligatory) force. The essential elements
of a custom are therefore.
- The usage
- Binding force
- The social consensus
- The time in which it is applicable
But the first two are the ones that are most frequently cited as the ones that form a custom. It
is also important to point out that custom can inspire the legislator when modifying or
completing an existing law or when judges are regulating new cases where the existing laws
are not clear or incomplete. Custom can also help for the comprehension of a legal text.
However, it is important to indicate that custom is applicable in the absence of law; And
when they are not contrary to the constitution, laws, regulations, public order and good
morals.
These laws are the principal sources of law. Custom is just a subsidiary source of law, in the
sense that they can inspire the judge and help him in the comprehension of legal texts.
2. General principles of law.
These are principles of law common to the legal systems of the world. In Rwanda, examples
of general principles of law are:
- the principle of double jeopardy
- that law provides for the future and does not have a retroactive effect.
- The principle of permanence and continuity of the state
- It is presumed that no-one is ignorant of the law.
In hierarchy, general principles of law are inferior to the Law. Some of them are already part
of the Rwandan penal code. In general, general principles of law are not as direct a source of
law as the laws they inspire the judge and they are resorted to in the absence of the law.
3. Jurisprudence (Decided case law)
Jurisprudence means the set of decisions rendered by courts and tribunals. In Romano-
Germanic legal systems, jurisprudence doesn’t bind the judge. The decisions of courts and
tribunals don’t have a general field of application. Judges’ decisions are only binding on
those parties involved in the case. If a judge is seized with a new case, he is not obliged to
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comply with decisions made on similar cases in the past (precedent). This means that in a
new case, he may rule differently from his previous decision.
This led some people to say that jurisprudence is not strictly speaking a source of law.
However, even though the jurisprudence doesn’t have a legal value or a legal binding force, it
exercises an unquestionably factual influence that guides the judge to rule in a given way. We
refer to this influence as defacto authority of jurisprudence .
In a common – law legal system, the situation is different. Jurisprudence does constitute a
binding source of law .we refer to it as Precedent. A common – law precedent has a binding
force on the judge. He cannot easily depart from it.
4. Doctrine
By doctrine, we mean legal scholars’ opinions on critical questions of law. In the wider sense,
doctrine refers to publications of persons deeply involved in the study of law. These are law
professors, senior judges, eminent lawyers, etc.
Doctrine serves to understand the positive law better, which means those rules applicable in a
given society at a precise time. Doctrine serves also to inspire possible law reforms by
proposing rules that should be enacted by the legislator. Although doctrine is not a principal
source of law, it constitutes a subsidiary impact on the law. It exercises an important
influence even though it is not a binding source of law. It guides the judge by promoting
reasons for deciding in a certain way. On the other hand, doctrine guides the legislator when
enacting laws. He can either consult legal works (publications) of scholars or ask them to
participate in the legal process as experts. The authority attached to doctrine relates somehow
to the reputation of the scholar himself. The more reputable he is in his field and
publications, the more his opinion will be of influence.
In conclusion, one can say that although doctrine is not a principle source of law, it plays a
significant role, as the opinion submitted by eminent lawyers on a subject of law can be
useful in case it is put forward and followed in courts, because it can help in the
comprehension of a legal text.
5. Equity
The regulation of 14 May 1886 foresees that in case there is a matter that is not provided by a
legal text, the disputes without solutions in local customs will be solved according to general
principles of law and equity.
Equity, which is based on the general feelings of justice, allows the judge, in case of silence
of law or a legal gap, to make judgements conforming to common sense and feelings of
justice. The notion of equity has a vague character and the judge is not bound by any certain
precise rule but he has the power to decide according to the circumstances but without
arbitrariness (unfairness) . This means that he has to apply equity with fairness. Certain legal
provisions give examples of how equity can be applied ( art 34,142, of the civil code iii ,
art.82 of the penal code )
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Equity is not itself a source of law. It is a means available to the judge when he is supposed to
give a judgement without applying a determined legal rule.
SECTION 3. SOURCES OF RWANDA BUSINESS LAW
A. INTERNATIONAL SOURCES
The role of international treaties is unknown in civil law. The implications of international
conventions on commercial law have been compounded by recent developments and
increasing interdependence in international commercial activities. Some might even argue
that the result of these developments might have had led to a uniform (unified) international
law. The implications of international conventions on Rwandan commercial law are both
direct and indirect.
Direct implication happens when a convention or an agreement becomes part of domestic law
or provides the basis for domestic law of similar content (e.g. the decree of December 10th,
1951 which deals with cheques and the decree of July 28th, 1934 which deals with the bill of
exchange the promissory note and protests). The content of both laws are based on the
Geneva Conventions of June 7th, 1930 and of March 19th, 1931, which deal with cheques and
bills of exchange.
Indirect implication of international conventions can be found in the adoption by Rwanda of
the Vienna Convention on the International Sale of Goods ( the United Nations Convention
on Contracts for the International Sale of Goods) of April 1980, which deals primarily with
external trade relations, Convention on the Recognition and Enforcement of Foreign Arbitral
Awards, etc.
.
Below are some examples of international conventions related to international trade.
- 1995- United Nations Convention on Independent Guarantees and Stand-by Letters of
Credit;
- 1988- United Nations Convention on International Bills of Exchange and International
Promissory Notes;
- 2001- United Nations Convention on the Assignment of Receivables in International Trade;
1991- United Nations Convention on the Liability of Operators of Transport Terminals in
International Trade;
- 2005- United Nations Convention on the Use of Electronic Communications in International
Contracts.
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B. DOMESTIC SOUIRCES
Currently, there is no commercial law code in Rwanda. However, some disparate laws do
exist:
- Decree of 2 August 1913 on traders and proof of commercial engagements;
- Decree of 12 January 1920, on pledge of business, discount and the pledge of
commercial bills;
- Decree of 27 July 1934 on bankruptcy and preventive legal settlement to bankruptcy;
- Decree of 10 December 1951 on uniform law on cheques;
- Law n°07/2009 of 27th April 2009 relating to companies, amending the law no
06/1988 of 12th February 1988.
- Law N° 50/2007 Providing for the establishment, organization and functioning of
Cooperative Organizations in Rwanda;
- Law n° 10/2009 of 14/05/2009 on mortgages;
- Law n° 12/2009 of 26/05/2009 relating to commercial recovery and settling of issues
arising from insolvency;
- Law n°40/2008 establishing the organization of Micro Finance activities;
- Law n° 005/2008 of 14/02/2008 on arbitration and conciliation in commercial
matters;
- Law n° 35/91 on the organization of internal trade as modified and supplied to date;
- Law n° 11/2009 of 14/05/2009 on security interest in movable property.
- Ministerial order n° 01/MINICOM of 08/05/2009 determining small private limited
company;
- Ministerial order n° 02/09/MINICOM of 08/05/2009 relating to businesses of low
income;
- Ministerial order n° 03/09MINICOM of 08/05/2009 determining fees for registration
of companies’ business activities.
- Law 45/2011 of 25/11/2011 Governing Contracts
It is advisable that the student acquaints himself with the above ministerial orders, laws and
decrees.
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STUDY UNIT 3. ADMINISTRATIVE LAW
SECTION 1. MEANING
As a scientific subject or discipline, Administrative law is an autonomous branch of public
law comprising the special rules concerning the organisation and functioning of the
administration, the activities of the administration and also litigation should be understood as
the processe of taking claims to court in non-criminal cases.
Private law rules don’t govern controversies (disagreements) within the jurisdiction of
administrative law. The reason of this independence of administrative law is that the
administration, serving a public interest, can’t be subject to the same rules as individuals.
This is why there are special rules different from those applied to private individuals and in
some countries; administrative disputes are adjudicated by special courts called
‘administrative courts’.
SECTION 2. SEPARATION OF POWERS
The State is composed of three branches which are the following:
- The Legislature
- The Executive
- The Judiciary
According to article 60(2) of the Constitution of the Republic of Rwanda, these three
branches are separate and independent from one another but are all complementary.
1. The Legislative branch: the Rwandan Parliament
According to article 62 of the constitution, it is stated that legislative power is vested in a
parliament consisting of two chambers:
- The chamber of Deputies, whose members shall have the title of ‘Deputies’
- The Senate, whose members shall have the title of “Senators”.
Parliament deliberates on and passes laws. These may be ordinary laws or organic laws.
Within the hierarchy of laws, an organic law ranks immediately beneath the constitution.
Organic laws are adopted with a view to specifying or completing provisions of the
constitution. Parliament legislates and oversees executive action in accordance with the
procedure determined by the Constitution (art. 62 const.).
Every member of the Parliament represents the whole nation and not just those who elected
or nominated him or her or the political organisation on whose ticket he or she stood for
election. (Art. 64(1)) before taking office, members of parliament shall take oath before the
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President of the Republic and, in case of his or her absence, before the president of the
Supreme Court. (Article 65(1))
The Bureau of each chamber of parliament is made up of the president and two vice-
presidents. This is in conformity with the constitution (art. 65(5) const.)
The office of a Parliamentarian shall not be compatible with being a member of the
Cabinet.
An organic law determines offices which are incompatible with the office of a
parliamentarian. (article 68(2 & 3) const. but see Art 116 Const. and below) It isalso
stipulated that no one shall at the same time be a member of the chamber of Deputies and of
the senate (Article 68(1) const.). The chamber of Deputies shall be composed of 80
members. The members of the chamber of Deputies shall be elected for a five year term.
Candidates may be presented by a political organisation or may stand independently.
The Senate shall be composed of twenty six (26) members serving for a term of eight (8)
years and at least 30% (thirty percent) of whom are women. Note should be made that the
sittings of each chamber of parliament are public.
The right to initiate legislation shall be concurrently vested in each Deputy and the Executive
acting through the cabinet (art. 90 const.). The law is sovereign in all matters (art. 93(1))
Organic laws govern all matters reserved for them by the constitution as well as matters that
require related special laws (art 93(2) const.).
An Organic law cannot contradict the constitution neither may an ordinary law or decree law
contradict an organic law nor a Decree contradict an ordinary law. (Article 93(3) const.).
In voting a bill, there must be a separate vote on each article as well as a vote on the entire
bill (article 93(4) const.). A vote on the entire law is conducted by calling each
parliamentarian by name and the parliamentarian votes by replying in a loud voice.
2. The Executive branch
The President of the Republic is the Head of state. He or she is the guardian of the
constitution and guarantees national unity. He or she guarantees the continuity of the state,
the independence and the territorial integrity of the Country and the respect of international
treaties and agreements. (Article 98 const.)
The President of the Republic has the right to address the nation. (Art. 98 const.).
According to article 101 of the constitution, the President of the Republic is elected for a term
of seven years renewable only once. This means that under no circumstances shall a person
hold the office of the president of the Republic for more than two terms. (art 101 (const.) If
the office of the President is vacant before the term expires, elections are organised within a
period not exceeding ninety days (Art . 107(3) const. ).
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In case the President dies or is permanently unable or otherwise chooses not to assume office,
new elections are held. In that case, the acting president will be the president of the senate, in
the absence of the president of senate, the speaker of the Deputies and in the absence of both,
the duties are assumed by the Prime Minister (art. 105(3) and 107(1) const.)
The office of the President is incompatible with the holding of any other elective public
office, public function or any other civilian or military employment or professional activities
(art. 106 cons.)
The President of the Republic is the commander–in–chief of the Rwanda Defence Forces
(Art. 110 cons.). He can declare war from his own initiative and he can as well sign
agreements temporarily or permanently to stop the war (Art. 110 const.).
He or she accredits Ambassadors and special envoys to foreign states and the ambassadors
accredited to Rwanda Present their credentials to him or her (Art. 114 const.). He or she
shall make appointments of senior public service and military offices as determined by the
constitution and other laws (Art. 112)
The cabinet shall comprise the Prime Minister, Ministers of state and other members who
may be determined by the President of the Republic (Art. 116(1) Const.).
The Prime Minister shall be nominated, appointed and removed from office by the President
of the Republic (Art. 116(2) const.). Other members of cabinet shall be appointed and
removed from office by the President of the Republic upon proposed by the Prime Minister
(Art. 116(3) const.).
According to Art. 117 const., the cabinet implements national policy agreed upon by the
President of the Republic and the cabinet. It is accountable to the President of the Republic
and to the parliament (Art.117 (2) const.).
3. The Judiciary
A. INTRODUCTION
Judicial power is exercised by the Supreme Court and other courts established by the
constitution and other laws. (Art140 (1) const.).
The Judiciary is independent and separate from the legislative and executive branches of
government. (Art. 140 (2)).
Justice is rendered in the name of the people and nobody may be a judge in his or her own
cause. (Art. 140(4) const.).
Judicial decisions are binding on all parties concerned, be they public authorities or
individuals. They shall not be challenged except through ways and procedures determined by
law (Art. 140(3) const.).
Every court decision shall indicate the grounds on which it is based. (Art 141(2) const.)
Courts apply orders and regulations only where they are not inconsistent with the constitution
and other laws. (Art. 141(3) const. ).
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In the exercise of their function, judges follow the law and only the law (Art. 142(2).
B. JUDICAL ORGANISATION AND COMPETENCE
B.1. Ordinary courts
a) Lower instance courts
There is established a lower instance court for sector councils. The court is to exercise
jurisdiction within the administrative boundaries of the sector council. In criminal matters
lower instance courts are competent to hear offences whose sentence a term of imprisonment
does not exceed five (5) years. They are not competent to hear offences relating to the
violation of traffic rules.
As regards civil disputes lower instance courts have original jurisdiction to hear and
determine:
• Disputes between natural or artificial (legal) persons whose monetary value does not
exceed three million (3,000,000Rwf), except civil actions related to insurance as well
as those seeking damages for loss occasioned by an offence tried by another court:
• Disputes related to land and livestock and their succession:
• Disputes related to civil status and family
• Disputes related to immovable property other than land which does not exceed 3
million Rwf of monetary value and its succession.
• Disputes related to movable property which does not exceed 3million Rwf of
monetary value and its succession.
Note that judgments rendered by lower instance courts in both criminal and civil matter can
be reviewed by the same court or appealed to the higher instance courts. The exception is
cases whose monetary value does not exceed Rwf fifty thousand (50,000). In this case the
lower instance court shall serve as the final court of appeal.
b) Higher instance courts
There is a higher instance court in district councils. Each court has specialized chambers: the
juvenile chamber, the administrative chamber and the labour chamber.
In criminal matters higher instance courts shall have jurisdiction to try offences whose
sentence is a term of imprisonment exceeding five (5) years except where the law reserves
the offence to other courts; they have jurisdiction to try traffic offences and person placed in
the first category accused of crimes of genocide and other crimes against humanity
committed between 1st Oct. 1990 and 31st Dec. 1994.
In civil cases, higher instance courts have jurisdiction to hear cases on the first instance that
are not triable by other courts. They shall have competence to hear on first instance case
related to insurance regardless of the value of the claim.
Note that the specialized chambers of higher instance courts shall hear administrative cases
relating inter alia, to actions for damages arising from contractual liability, government
officials and its parastatals.
In its appellate jurisdiction the court can hear appeals against judgment rendered on first
instance by lower instance courts within their respective jurisdiction.
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The provincial or city of Kigali court can review its judgment or appeal to the Higher court.
c) The Higher court
There is established a higher court whose seat is in the city of Kigali. Its jurisdiction covers
the entire territory of the republic. The higher court shall have four (4) chambers in other
parts of the republic namely: Musanze, Nyanza, Rwamagana and Rusizi. The jurisdiction of
the chamber that operates at Musanze is equal to the jurisdiction of the higher instance court
in Musanze and Rubavu. The jurisdiction of the chamber that operates at Nyanza is equal to
the jurisdiction of the higher instance court Muhanga, Huye and Nyamagabe. The jurisdiction
of the chamber that operates at Rwamangana is equal to the jurisdiction of the higher instance
court of Ngoma and Nyagatare. The jurisdiction of the chambers that operates at Rusizi is
equal to the jurisdiction of the higher instance court of Rusizi and Karongi. Finally cases
originating from the territorial jurisdiction of the higher instance court of Nyarungenge,
Kabuga and Gicumbi shall be tried at the seat of the high court of the republic.
The high court exercises both original appellate jurisdictions. In the exercise of the original
jurisdiction, the high court has competence to hear specific criminal cases, administrative
cases and civil matters; its jurisdiction is limited to the execution or enforcement of authentic
deeds executed by foreign authorities as well as foreign judgments. In the exercise of its
appellate jurisdiction, the higher court has jurisdiction to hear appeals from civil cases heard
on first instance by a higher instance court. It also hears specific appeals on second instance
from higher instance courts. In addition, it hears appeals from decisions taken by arbitration
tribunals.
The high court also hears appeals from criminal cases tried on first instance or appellate level
from higher instance courts.
Note that the high court of the republic has competence to review its own decision. A
dissatisfied party can party can appeal to the Supreme Court.
d) Supreme Court
The Supreme Court is the highest court in the Republic of Rwanda. The Supreme Court
directs and co-ordinates the activities of the lower courts. The court has jurisdiction over the
territory of the Republic of Rwanda. Its decision is not subject to appeal except in terms of a
prerogative of mercy or the revision of a judicial decision.
The Supreme Court exercises ordinary and special jurisdiction. In the exercise of ordinary
jurisdiction the court is the court of last resort for appeal for trials heard by the high court of
the republic in the first degree and in the second degree provided inter alia, the award of
damages equals or exceeds twenty million francs (20,000,000) or the subject matter in
disputes equals or exceeds twenty million francs (20,000,000).
In the exercise of its special jurisdiction the supreme court has, inter alia, exclusive
jurisdiction to try in the first and final degree, the president of the republic, the president of
the senate, the president of the chamber of deputies, the president of the supreme court and
the prime minister for offences committed during their terms of office, whether such offences
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relate to the exercise of their public duties or their private matters, regardless of whether they
are still or have ceased to hold office.
B.2. Specialized courts
a) Military courts
Military tribunals have competence to try all offences committed by all military personnel
except offences which constitute a threat to national security and murder committed by
soldiers. They also have competence to try all military personnel accused of the crime of
genocide and crimes against humanity committed between October 1st and December 31st
1994 that places them in the first category.
Judgments rendered by a military court may be reviewed by the same court or appealed to the
military high court.
The military high court exercises both original and appellate jurisdiction. In that exercise of
its original jurisdiction, the military high court shall try all offences which constitute a threat
to national security and murder committed by soldiers. However, if, during judgment, the
court finds that the elements of the offences constitute manslaughter instead of murder, it
shall nonetheless hear the case.
In its appellate jurisdiction the court hears appeals from cases tried by the military court.
Cases heard in the first instance by the military high court may be reviewed by the same court
or appealed to the Supreme Court. If the case was heard in the second instance by the military
high court, the case will be appealed to Supreme Court provided the sentence passed by the
military high court is equal to or exceeds ten (10) years of imprisonment.
b) Commercial courts
Other specialized courts are commercial courts. They will be examined in the next chapter.
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STUDY UNIT 4. THE BUSINESS DISPUTES RESOLUTION
SECTION1: REVIEW OF KEY CONSTITUTIONAL PROVISIONS REGARDING
THE COURT SYSTEM
As said above, there are several Constitution provisions related to the Court System. The
Constitution and other laws are clear about the ordinary courts and specialized courts.
Ordinary courts are the Supreme court, the High court and the Intermediary courts and the
primary courts.
Specialised courts are Commercial courts, and the Military courts. Military courts comprise
the Military Tribunal and the Military High Court - see previous chapter.
SECTION 2. Rwandan Commercial justice system
2.1. Background and chronology of the establishment of commercial courts in Rwanda
As said, the Rwandan judicial system comprises ordinary and specialized courts. Ordinary
courts include the Supreme Court, the High Court, Intermediate Courts and Primary Courts.
Specialized courts include Gacaca Courts, Military Courts, and Commercial Courts.
The long process that led to the establishment of commercial courts can be summed up in the
following table.
Table 1: Chronology of the establishment of commercial courts in Rwanda
Activities
Time
Creation of the Rwandan Law Reform
Commission
May 2001
Law Reform Commission drafts new laws
July 2001-December 2003
Law Reform Commission presents new laws to the
Cabinet
January 2004
Parliament adopts new law on courts, judges and
civil and criminal procedure
April-July 2004
Cabinet admits failure of assessors in enhancing
commercial litigation
End of 2004-Early 2005
Cabinet establishes Business Law Reform Cell
October 2005
Superior Council of the Judiciary selects 22 local
judges for the commercial courts
July-December 2005
Draft law establishing commercial courts adopted
December 2007
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Draft law establishing commercial courts goes
through legislative process
December 2007-March 2008
Eight local judges leave for specialized course in
South Africa
February 2008
Publication of law establishing commercial courts.
Procedural rules law is published the same day
March1, 2008
Law dealing with arbitration and conciliation in
commercial matters enters into force
March 6, 2008
Swearing in of 2 Mauritian judges as President of
the Commercial Court and
President of the
commercial court of Nyarugenge
May 2, 2008
Commercial courts become fully operational
March 15, 2008
As indicated in the table above, on 16th December 2007, the Parliament enacted Law No.
59/2007 of 16/12/2007 establishing commercial courts and determining their organization,
functioning and jurisdiction.
2.2. Organization structure of commercial courts
The Law provides for four commercial courts. Of the 4 courts, 3 are lower commercial
courts, namely Nyarugenge Commercial Court, Huye Commercial Court and Musanze
Commercial Court, and one is the Commercial High Court.
Judges of the Commercial Court consist of the President, the Vice President and at least five
other judges. The President and the Vice President are appointed by a Presidential Order after
approval by the Senate. They can only be removed from office in specific circumstances as
provided for by the Constitution. Other judges of the Commercial Court along with judges of
Commercial Courts are appointed by the President of the Supreme Court upon approval by
the Superior Council of the Judiciary.
The President of the Commercial High Court and the President of the commercial court are
responsible for the organization and effective performance of their respective courts.
In this regard, they shall take all necessary decisions for the speedy trial of cases by avoiding
any factors which may cause delays in adjudicating the cases. In particular, they are
responsible for organizing and determining the functioning of their courts including
monitoring the performance and conduct of judicial personnel.
2.3. Jurisdiction of commercial Courts
Commercial courts have a limited jurisdiction. Such courts are competent to try commercial
cases. In order to determine the jurisdictional scope of commercial courts, the Law provides a
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list of commercial matters. According to Article 3 of the Law establishing commercial courts,
commercial matters refer to commercial, financial, fiscal and other matters closely related to
them regarding:
• disputes arising from commercial contracts or commercial activities between
persons or business entities;
• disputes arising out of the use of negotiable instruments such as cheques, bills of
exchange and promissory notes;
• disputes relating to transactions between persons and financial institutions;
• disputes related to liquidation, dissolution and recovery of limping business firms;
• cases related to insurance litigation but not including compensation claims arising
out of road accidents by litigants who have no contract with the insurance firms;
• claim related to fiscal disputes;
• claims related to transport litigation;
• any dispute that may arise between persons who own or manage registered entities
and commercial institutions and these include:
• members of the Board of directors;
• directors;
• shareholders;
• auditors;
• liquidators;
• managers of the property of a bankrupt business firm.
• cases arising from bankruptcy;
• cases related to intellectual property including trademarks;
• cases related to registration and deregistration of businesses;
• cases related to appointment or removal of auditors responsible for auditing the
books and accounts of a firm;
• cases related to competition and consumer protection.
Problems may arise from the determination of the jurisdiction of commercial courts based on
a commercial list. Indeed, a list of commercial issues is not comprehensive and question of
jurisdiction may arise in some cases so as to decide jurisdiction. Thus, it is necessary to
formulate clear and efficient rules in order to avoid such problems.
As to the in-value jurisdiction of commercial courts, the Law provides that Commercial
Courts deal with all commercial disputes with a value below 20 million Rwandan francs and
non-monetary commercial matters. The Commercial High Court decides at first instance all
cases with a value above 20 million Rwandan francs and hears appeals from interlocutory
interim orders and judgments of the Commercial Courts at the first level. The Supreme Court
hears appeals against decisions of the Commercial High Court.
The territorial jurisdiction of the Commercial High Court and Commercial Courts is provided
in an annex to the Law establishing Commercial Courts.
2.4. Qualified judges for dealing with commercial litigation
Judges dealing with commercial litigation shall have sufficient experience in trade issues and
the relevant laws of different business activities. For satisfactory and effective commercial
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litigation, it is important to train group of judges, lawyers and experts to deal with
commercial litigations and legislations, and to set suitable training program for this end.
Considering that without improved professional standards the new commercial justice system
would not be effective and efficient, the Government of Rwanda recognized the urgent need
to have qualified judges to deal with commercial litigation. In this regard, Article 6 of the
Law establishing commercial courts provides that, apart from permanent professional judges,
Commercial Courts and the Commercial High Court shall have equally specialized judges
operating on temporary basis and governed by an employment contract. In addition, the
specialized judges may be of Rwandan nationality or of foreign nationality and shall be
highly qualified in commercial law matters with experience of three years in judicial matters
for those with at least a doctorate degree, and an experience of five years for those with a
bachelor’s degree.
In order properly to staff the Commercial High Court and Commercial Courts, in May 2008,
the Supreme Court succeeded in recruiting two Mauritian judges who were sworn in as
President of the Commercial High Court and the Nyarugenge Commercial Court. These
judges had the advantages of holding a mixed background in common law and civil law.
On the other hand, recruited judges undertook specialized studies in commercial law, the goal
being to have specialized judges in all Commercial Courts and the Commercial High Court.
2.5. Proceedings relating to commercial cases
On 11th September 2007, the Parliament passed Law No. 45/2007 modifying and
complementing No. 18/2004 of 20/06/2004 relating to the civil, commercial, labour and
administrative procedure. The 2007 Law contains amendments to the law 2004. The law
includes a new chapter on proceedings in commercial cases. This chapter comprises three
sections on the initiation of a case, preliminary hearing and substantive hearing of the case,
respectively.
A. INTIATION OF A CASE
The registrar receives and registers the claim in the commercial case register.
The plaintiff or his or her legal representative shall file a written commercial claim in form of
a Plaint.
The Plaint shall:
1° specify in form of conclusions the remedies sought;
2° identify the names of the parties to the suit or other persons connected to it;
3° contain a summary of the nature of the claim in form of short numbered
paragraphs and indicating the grounds on which it is premised;
The plaint is accompanied by the following documents depending on their availability:
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1° a list of witnesses and a brief summary of evidence each witness shall give;
2° an expert report that the plaintiff wishes to use as evidence;
3° any other document the plaintiff wishes to refer to.
The defendant must deliver a written statement of defence within 14 days of receiving the
initial complaint.
B. PRELIMINARY HEARING
An important innovation of the 2007 above-mentioned law is that the judge has a duty to
organize, within 21 days of receiving the defendant’s answer to the complaint, a preliminary
hearing with both parties. The preliminary hearing aims at making interlocutory orders on
issues that may hinder the hearing of the case; it allows the judge to prepare for the
proceedings and for the admittance of evidence. Also in the preliminary hearing, the judge
may refer the parties to arbitrators or mediators in commercial matters; refer the matter to the
mediation committee if the subject matter lies in its competence or jurisdiction; and pass a
judgment in respect to a matter without going into the substantive hearing after consultative
hearing after consulting to the parties.
After the preliminary hearing, a date for the substantive hearing is fixed and communicated to
the parties.
C. RULES ON ADJOURNMENTS
The rules on adjournments – extra time to comply with procedural requirements – are meant
to avoid delaying tactics. It is in this line that there shall be no adjournment of a preliminary
hearing unless a sufficient reason is presented to court at least five working days before the
hearing date.
The law also addresses the issue of the adjournment of a case. In this regard, the trial judge
may at his or her own discretion or upon request of any of the parties adjourn the case or take
any order deemed necessary. If the judge grants a party extra time and it later turns out the
request was not genuine and meant only to delay the process, the judge can impose damages,
which must be paid before the next hearing. If they are not paid, a further penalty applies.
D. SUBSTANTIVE HEARING
At the substantive hearing of the merits, the parties present their evidence. The trial judge
may during this hearing, after examining the evidence of witnesses or their opinions, make an
order whether such evidence is sufficient. He may also encourage skilled people on the
subject matter to seek dialogue with the parties with the view of making them settle the
matter or appoint an expert to examine on behalf of court any report of skilled persons or
other evidence presented to court and to report to court on a date fixed by the trial Judge.
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Upon request by the parties, the trial judge may pass judgment based on the written
submissions or written submissions or any other evidence without a hearing.
E. INCREASED EFFICIENCY OF COMMERCIAL COURTS
As provided for by Article 11 of the law establishing commercial courts, the President of the
Supreme Court set up a Committee to advise her on expeditious disposal of commercial
cases. The Committee consists of 11 members: 4 judges (one from each commercial court
and one from the Commercial High Court); one person representing the Ministry of Justice;
one person from Rwanda Development Board; one advocate from the Bar Association; one
from the Chamber of Industry; one from banks and another one from professional services.
Members of the Committee should hold office for a period of 3 years.
As an Order of the President of the Supreme Court spells it out, the Committee shall have the
following attributions:
• Analyse the reasons that may cause the delay in the adjudication of commercial cases
and advise on measures to remedy that
• Advise on modifications of the law to be carried out so that commercial cases are
tried expeditiously
• Analyse the gaps in providing various services to people who come to the commercial
courts and provide advice on how to fix that.
• To perform any other duty assigned to the Committee or as the Committee may
determine in the furtherance of its mission
The committee found out that according to reports prepared by the Commercial High Court,
adjudication of commercial cases is generally speedy. However, after a thorough review of
the Law on Commercial Courts and the Law relating to civil, commercial, labour and
administrative procedure, the Committee found out that there are some shortcomings that
have to be addressed in order to avoid an accumulation of new arrears.
SECTION 3. Arbitration
1 Introduction
In Rwanda, new law on commercial arbitration and conciliation was established in 2008 as
Law n° 005/2008 of 14/02/2008 on arbitration and conciliation in commercial matters.
Article 3 (2) of Rwandan law on arbitration defines arbitration as “a procedure applied by
parties to the disputes requesting an arbitrator or a jury of arbitrators to settle a legal,
contractual or another related issue‟.
Arbitration refers to a process in terms of which the parties to a dispute voluntarily and
jointly ask a third party, the arbitrator, to hear both sides of their dispute and make an award
that they undertake in advance will be final and binding. The fact that the arbitrator settles the
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dispute by making a legally binding award distinguishes arbitration from mediation and
negotiation. For this reason, arbitration is more similar to litigation, as both are command
processes where a decision is imposed on the parties, in contrast to negotiation, which is
consensual in nature. But, in contrast to litigation, the arbitrator`s award arises from the
consent of parties to accept the award, not from the power of the court imposing an order.
2. Significant features of arbitration
Four significant features of commercial arbitration are singled out for now, although they will
be the subject of a brief comment later. These features are :
• The agreement to arbitrate;
• The choice of arbitrators;
• The decision of the arbitral tribunal;
• The enforcement of the award.
3. The agreement to arbitrate
An agreement by parties to submit to arbitration any dispute or difference between them is
the starting point of the process in both national and international arbitration. If there is to be
a valid arbitration, there must first be a valid agreement to arbitrate. Arbitration is a
contractual process in the fact that it is based on an agreement between the parties, by
opposition to some cases where arbitration is imposed in statute, such as provided for in
Switzerland by article 89 of the Statute on health care insurance for disputes between doctors
and health insurers, or as provided in France by Article 761-5 of the labour law code for
certain disputes in the field of journalism.
The Rwandan law on arbitration defines the arbitration agreement. The long Article 9 of the
above-mentioned law provides:
“Arbitration agreement is an agreement by both parties to submit to arbitration all or
certain disputes which arisen or which may arise between them in respect of a defined
legal relationship, whether contractual or not. An arbitration agreement may be in
the form of an arbitration clause in a contract or in the form of a separate
agreement. The arbitration agreement shall be in writing. An arbitration agreement is
in writing if its content is recorded in any form, whether or not the arbitration
agreement or contract has been concluded orally, in a written form basing on the
conduct of the parties themselves, or based on other means. The requirement that an
arbitration agreement be in writing is met by an electronic communication if the
information contained therein is accessible so as to be used for subsequent
reference; Electronic communication refers to any communication that parties make
by means of data message; Data message refers to any information written, sent,
received or stored by electronic, magnetic, optical and other means, including,
but not limited to, electronic data interchange (EDI), electronic mail, telegraph,
telex or telefax. Furthermore, an arbitration agreement is in writing if it is
contained in an exchange of statements of claim and defence in which the existence of
an agreement is alleged by one party and not denied by the other. The reference
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in a contract to any document containing an arbitration clause constitutes an
arbitration agreement in writing, provided that the reference is such as to make
that clause part of the contract”.
4. The choice of arbitrators
One of the features of that distinguishes arbitration from litigation is the fact that the parties
to an arbitration are free to choose their own tribunal. Sometimes, it is true; this freedom is
unreal, because the choice may be delegated to a third party such as an arbitral institution.
However, where the freedom exists, each party should make sensible use of it. A skilled and
experienced arbitrator is one of the key elements of a fair and effective arbitration.
5. The decision of the arbitral tribunal
It is not uncommon for a settlement to be reached between the parties in the course of arbitral
proceedings. However, if the parties cannot resolve their dispute, the task of arbitral tribunal
is to resolve the dispute for them by making a decision, in the form of a written award.
An arbitral tribunal does not have the powers or prerogatives of a court of law, but it has a
similar function to that of the court in this respect, namely that it is entrusted by the parties
with the right and the obligation to reach a decision which will be binding upon them.
The power to make binding decisions is of fundamental importance. It distinguishes
arbitration as a method of resolving disputes from other procedures, such as mediation and
conciliation which aim to arrive at a negotiated settlement. The procedure that must be
followed in order to arrive at binding decision by way of arbitration may be described as
judicial. An arbitral tribunal is bound to act fairly and impartially as between the parties,
giving each party a reasonable opportunity of putting his case and dealing with that of his
opponent.
6. The enforcement of the award
Once an arbitral tribunal has made its award, it has fulfilled its function and its existence
comes to an end. The tribunal`s award, however, gives rise to important and lasting legal
consequences. Although it is the result of a private arrangement and is made by a private
arbitral tribunal, the award constitutes a binding decision on the dispute between the parties.
If it is not carried out voluntarily, the award may be enforced by legal proceedings both
locally (that is to say, in the place in which it was made) and internationally.
The registration or deposit of award is a sine qua non requirement for an award to be
recognized an enforced in Rwanda. However, no fee is paid for that registration or deposit for
recognition of arbitral awards sought in Rwanda.
According to article 395 of the law establishing Commercial, civil, social and administrative
procedure code, the party seeking recognition shall deposit the duly authenticated original
award or duly certified copy thereof; and the original agreement or duly certified copy thereof
award at the president of the higher instance court`s office and request the executory stamp
on the deposited award. Article 396 of the same law, states that the President has 8 days to
make a decision concerning that recognition.
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In 2008 Rwanda ratified the New York convention on Recognition and Enforcement of
foreign arbitral awards and became the 143rd State party to the convention.
The New York convention provides for a simpler and effective method of enforcement of
obtaining recognition and enforcement of foreign awards. It is mainly due to the provisions of
the New York convention that arbitration has become a very attractive alternative to
traditional litigation. It is one of the widest accepted international conventions. It has
significantly simplified the enforcement of foreign awards and harmonized the national rules
for the enforcement of foreign awards.
7. Matters excluded from arbitration
The subject matter of a dispute must be arbitrable in order for legitimate arbitration to take
place. According to article 47 para 5 of Rwandan law on arbitration provides that a party can
appeal against an award if:
“The award deals with a dispute not contemplated by or not falling within the terms of
the submission to arbitration, or contains decisions on matter beyond the scope of the
submission to arbitration, provided that, if the decisions on matters submitted to
arbitration can be separated from those not submitted, only that part of the award
which contains decisions on matters not submitted to arbitration may be set aside”.
Arbitration is not permissible in following matters:
• Matrimonial causes;
• Matters relating to status;
• Criminal cases
8. Difference between arbitration and litigation
There are a number of important differences between arbitration and litigation, namely
Cost and Expeditiousness; Confidentiality; Flexibility; Impartiality.
Cost and Expeditiousness
It is a common, albeit not always true assumption, that arbitration is cheaper and less time
consuming than litigation. Can arbitration be faster and less expensive? The answer to this
question is ‘most certainly.’ However, this is not always the case. Arbitration just like any
other adversarial process may be expensive and time consuming especially if one of the
parties is willing and able to spend considerable resources to defend its position and can
exploit dilatory tactics to his or her benefit. In some aspects, the very characteristics that
make arbitration more appealing than litigation are the same aspects that frame its
disadvantages. For instance, the fact that it is flexible and dependant on the mutual consent of
both parties may create time delays and incidental costs.
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Although litigation has been described as ‘a machine in which you enter as a pig and come
out as a sausage’. one would not be far from right by defining some international arbitration
procedures in the same way. Moreover, it is not uncommon for lawyers to take control of the
proceedings in complex international commercial arbitrations. This may come about as a
result of the arbitrators’ efforts to instil trust in the arbitration process. Arbitrators give both
parties the opportunity to fully present their case. Unlike in litigation where a case could
summarily be dismissed, arbitration does not have the remedies found in judicial systems that
are created to limit the development of frivolous cases. Consequently, there are no measures
such as motions to dismiss or motions for summary judgment. The non-existence of such
measures is an advantage for the claimant but a rather costly disadvantage for a defendant
confronted with an unwarranted claim.
Furthermore, another factor that could lead to the high cost of arbitration is the number of
extensions granted by arbitrators. Arbitrators are often very generous with the amount of time
they grant parties to submit various pleadings. While this may be in line with making sure
that both parties are treated fairly or that due process is adhered to, the result is that it
amounts to significant delays in conducting the arbitration.
Additionally, there is usually a great amount of difficulty in arranging a timetable that will
accommodate the schedule of the members of the arbitral tribunal, the legal representatives or
witnesses, if the situation warrants it.
Moreover the panel of arbitrators for complex international commercial contracts is usually
three; each of whom has to be well paid hence increasing the cost of arbitrations. This cannot
be compared to the minimal court fees one encounters in litigation.
Although a party who has the intention to drag out the arbitration, may have a great chance of
doing so particularly at the commencement of the proceeding, the cost of arbitration is often a
great advantage if parties co-operate and keep expenses to a minimum.
Confidentiality
Many people view the private nature of arbitration as a main advantage. Due to the fact that
court proceedings are open to the public; many business people prefer arbitration to litigation.
Unless otherwise agreed, awards in arbitral proceedings are confidential and the proceedings
are closed to the public. This is considered important especially to parties who wish to protect
trade secrets. Moreover, in the interest of protecting present or future commercial
transactions, many business people deem any publicity of an on-going dispute as detrimental
to their reputation.
Flexibility
The arbitration process is hailed for its inherent procedural flexibility. Unlike court
proceedings which are rigid, arbitral proceedings offer greater flexibility in international
commercial transactions. Parties get to choose their own arbitrators, in addition to having the
independence to customize the arbitration proceedings to suit their wishes. Although parties
may choose an already established arbitral institution with its own set of rules of procedure,
the parties have a choice to decide on whether or not they want a totally different procedure
that better serves their needs. If both parties cooperate and decide that they both want a
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speedy arbitration, the flexibility of arbitration can be used to their advantage to achieve that
goal. Moreover, parties may even choose to have ‘fast track’ arbitration – an option that is
offered by institutions such as the International Chamber of Commerce and the London Court
of International Arbitration.
Another reason for the preference of arbitration over litigation by business parties is that
many legal problems arise due to the possibility of several legal systems clashing hence
complicating matters even more. It may be hard for the parties to find the most ideal place to
file their suit. This may lead to a party embarking on a venture in search of a jurisdiction that
may be more sympathetic to its interests. ‘Forum-shopping’ as this venture is often called,
may be based on the search for a jurisdiction that is likely to be biased in favour of the party
choosing that jurisdiction (for instance the anticipation of large amounts in damage awards).
Should the national courts of different countries claim to have jurisdiction over the same
dispute, parallel litigation in more than one court may be a consequence, which would not
only affect the parties heavily in costs but could potentially force them to defend themselves
in multiple courts concurrently; not to mention the ordeal of having to cope with ‘competing
anti-suit injunctions.’ This was the case in Laker Airways Ltd V. Sabena Belgium World
Airlines. Furthermore, if the problem of conflict of jurisdiction is not resolved, the various
courts presiding over the dispute may render conflicting judgments on the same matter.
Impartiality
One of the main reasons parties opt for arbitration over litigation is the fear the national
courts will be biased in favour of their own citizen or the advantage of the home litigant in
issues such as knowing the system, procedural rules, etc. Therefore, proceeding on the
assumption that the arbitral tribunal will be fair and impartial and will not take the nationality
of the parties into consideration, parties choose arbitration over litigation.
If any of the parties reasonably suspects that an arbitrator lacks the necessary degree of
objectivity or that the arbitrator will not be fair and impartial in performing his duties, then
that party can object on those grounds. Some have posited this as a disadvantage of
arbitration in that a party can use this as a delaying tactic by ‘raising unwarranted objections’
or attempt to disturb what could otherwise be a smooth arbitration proceeding by filing an
application midway through the proceedings. However this may not be something to worry
about depending on whether the parties’ arbitration is under the auspices of an institution
with rules safeguarding against such conduct. Institutions such as the International
Commercial Court (ICC) have rules where parties have to follow certain procedures in
making such objections (which have to be well founded). Moreover, those objections have to
be made in within a specific period if the party’s application is to be considered on the
specified grounds.
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STUDY UNIT 5. LAW OF PERSONS
According the law a “person” is defined as a “being” that can have rights and duties or
obligations, and that has, therefore, capacities to play a part in the life of a given community.
Rwandan law distinguishes between two classes of persons: the natural person or human
being, and the moral person. Moral persons, called also “juristic persons”, are social
associations representing a group of interests. Such organisations can be either a group of
individuals such as a state, company and association, or a group of properties/individuals
such as foundations.
These associations are governed:
- either by public law, in the instances of entities such as the state, provinces, districts,
and public corporations;
- or by private law, such as companies, associations of natural persons and
foundations.
Natural persons and moral persons are vested with juridical personality.
1. Juridical or legal personality
A. PRINCIPLE
“Juridical or legal personality” of a person refers to his ability to have rights and duties.
A human being, without any discrimination, is recognised as a legal subject who possesses
legal personality, without distinction of sex, race, colour, religion, nationality or social
condition.
Human beings are the only legal subjects recognised by the law. This principle implies
that things and animals are legal objects and cannot be legal subjects (active or passive).
There was a time in history when a human being could be considered as an object instead of a
human being: those were slaves. Slaves were legal objects like objects. Slavery has been
abolished all over the world. A human being does not ask for juridical personality. It is
recognised as a matter of right. But a moral person must always demand juridical personality
given by an authorised organ. The moral person, as a legal subject may only carry out acts
relating to its object.
Legal personality has a beginning and an end.
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B. THE BEGINNING OF LEGAL PERSONALITY: BIRTH OF A NATURAL
PERSON
According to Art.15 of Family code (FC), a natural person’s personality begins at birth.
However, the potential interests of the unborn child may be protected from his/her
conception. Whenever there is a situation which can be to the advantage of a child, the child
shall be deemed to have been born from the time of conception (art.16 FC). Provisions of this
article enable the child born alive and viable to claim his/her rights from the time of
conception, and that will be the case in matters relating to successive rights.
It appears thus that rights are conferred on the unborn child at birth, if he is born alive and
viable. However, there are rights that are to be protected before birth; we can mention the
right to life. From the time of conception, the unborn child is recognised as having the right
to life. This is the reason for repression and punishment of medical abortion.
What about the date of conception? This is a complex question of proof. In other words, how
can one determine the exact time of conception?
In trying to solve that complex question, the law established an irrefutable presumption: the
child is presumed to have been conceived between the 300th day and the 180th day before his
birth (Art.17 FC), so that his rights can easily be established.
C. THE END OF LEGAL PERSONALITY: DEATH
The legal personality of a person is terminated by death or by absence. In law, if the missing
person has been absent for 9 to 12 years, he is presumed to be dead.
1. Principle. The legal personality, recognised by a person alive, is ended by death; the
human being is considered a legal subject from birth to death (Art. 15 FC). Dead persons
cannot possess (have) rights. Nevertheless, Rwandan law admits:
- Protection of the deceased’s body and burial place;
- Respect of the deceased’s names and protection against defamation;
- Respect of the deceased’s will after his death.
-
But in fact, respect of the dead and his memorial celebration is done in the interest of the
survivors’ honour.
2. Proof of death. In principle, death is proved by the identification of the deceased’s body.
A situation can arise where a person disappears, but nevertheless there are circumstances
justifying his death, even if his body was not found or identified. In such a situation, any
interested party may approach the competent tribunal to grant a presumption of death order
with regard to the person. This is called “declaration of death”(Art.19-20 FC).
3. Determination of the moment of death. It is always important and obligatory to
determine the moment of death. This is for practical reasons: for example, succession falls
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open at the time of death. The date of death can be certain or presumed. The presumption is
applied to cases of co-deceased persons (Art. 18 FC) and “declaration of death”.
Death is also presumed in the case of long absence of a person and this presumption shall be
followed by a judgement declaring his death.
2. Legal identification of physical persons
Identification of a person serves to distinguish people from others while exercising their
rights. According to article 57 of the family code, “a physical person is identified by gender,
ethnicity, name, given name, residence and domicile”.
On these elements, we must add “nationality” in order to distinguish a Rwandan citizen from
a foreigner. It is also important to add “the place and date of birth (age)”.
Although, in this chapter, nationality is one of the elements identifying a person, it will be
dealt with in a separate section.
A. GENDER, AGE AND THNICITY
1. Gender and age
There are legal effects related to gender and age :
Examples :
- marriage is only allowed between two persons of different sexes (art.17 FC);
- the husband is the head of the conjugal community (art. 206 FC);
- The incapacity of a person of minor age;
- Under the former Family Code - the incapacity of the married woman; the new code
gives a man and a woman full capacity without distinction.
2. Ethnicity
Family code considers ethnicity as an element for identifying a physical person, even though
there is no right attached to it; especially in as far as the status and capacity of a person are
concerned.
At the moment of adoption of the Family Code, the upholding of ethnicity as an element for
identifying a person was justified by the former regime as a fundamental element to
implement the so-called policy of “ethnic and regional balance”.
Today, ethnic background is no longer an element of identification of a person, since it
was first repealed by the Arusha Peace Agreement of August 4th, 1993, and later by the 2003
Rwandan Constitution. It is formally prohibited to mention that element in the identity card,
or in any other document related to civil status.
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B. NAME AND GIVEN NAMES (ART 58-72 FC)
1. Notion and principle
Name is a term used to specify a person in his/her social and legal life in exercising his/her
rights and fulfilling his/her duties.
This means of individualisation is composed of various elements having different importance,
and governed by different regulations:
- A surname and one or more potential given names (Art.58 FC) ;
- In practice, individuals are sometimes given nick names ;
- Individuals also may decide to use a pseudonym or pen-name ;
- In some societies, there are qualifications based on either religion (e.g. Muslims), or
nobility (e.g. In European feudalism: Prince, Duke, Count, Viscount, Baron, and
Knight).
2. Surname and given name
Unlike some societies where the individuals take up family surnames, in Rwanda, a personal
name is given to an individual upon his/her birth: surname.
The legislator gives reasons to justify why a personal name is maintained instead of a
family name:
- Most of Rwandan names are closely related to previous circumstances of their
parents’ life;
- Some names are ridiculous and are against good morals;
- There are some names which are not suitable for females (e.g. Mfizi –Bull,
Gasekurume – Goat, Semubi – The Ugly.);
- Attribution of family surnames is no more than a blind obedience to foreign traditions.
- It is unanimously known that Rwandan culture, regardless of potential nicknames,
officially attributes one surname and if need be one given name.
A surname is given within a period of 15 days after birth. The given name(s) is (are) not
compulsory. The given name(s) is (are) given at the same time as the surname.
In the same family, given names are personal. It is not allowed to take one’s father’s,
mother’s, brothers’ or sisters’ given names while they are still alive so as to avoid confusion
among individuals.
The name given to a child is communicated to the civil status officer at the time of birth
declaration. In practice a surname is given to a new-born child by his/her father on the 8th day
after birth, in case of father’s absence, this is done by one of the close male relative, member
of the family council.
Birth declaration (notice) is done (given) by the father, in his absence by the mother, in their
absence by one of the ascendants or close relatives, or any person having assisted in the birth,
or any other person that finds a new-born.
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The married woman retains her maiden name on official documents. She may however, for
personal reasons, use her husband’s name if she so wishes.
Clergymen and religious personnel also retain their surnames and given names on official
documents.
Surnames and given names must not be against morality and good morals.
3. Nickname
A nickname is an unofficial name used by friends and by the public and adds to his/her name.
Nicknames are very common. They are not official, therefore cannot be written on
certificates of civil status.
4. Pseudonym
Pseudonym is a borrowed name that a person uses to conceal his/her real name. This is often
done by artists, writers, sportsmen, warriors and politicians.
Pseudonym has no regulation and has no official value. Because it is useful in completing
identity, people are used to mentioning it on certain certificates. Pseudonym can lead to birth
of a right similar to commercial names and be protected against usurpation.
5. Legal characteristics of a name
The name is characterised by the following three elements:
- Immutability;
- Imprescriptibility;
- Unavailability.
(1) Immutability
The name is imposed on a person. None shall officially take/adopt a name or a given name
which is different from the one mentioned on the birth certificate (Art.62 FC). A person
cannot change his/her name at will.
Changing a name is only authorised by the Minister of Justice on request of any interested
person in conformity with the prescribed legal procedure (Art.65-70 FC).
(2) Imprescriptibility
The person’s name is not subject to extinguishing or acquisitive prescription.
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(3) Unavailability
The person’s name is not subject to commercial transaction. It’s beneficiary cannot pass it
(on) to another neither can he/she generally allow another person to use it. However, an
individual’s name attributed to the commercial exploitation can be passed to another person
as a commercial name.
6. Protection of the right to a name
Any person has a right to use his name in order to identify him/herself, even though the
usage may cause prejudice to the other person; for example, in the case of homonymy -
sharing the same name. However, the attempt to create confusion is to be avoided, otherwise,
there would be abuse of rights that can result in liability.
A person may request third parties to address him/her using his/her real name, and rectify it
on certificates where his/her name might have been incorrectly written. It is the “action of
claiming a name” or an “action of rectifying a certificate” or an “action of claiming a status”.
The bearer of a name can prevent other persons from using it, especially when there is a
likelihood that it could lead to material or moral damage. After death of the bearer, the right
is passed to the surviving spouse and successors.
C. DOMICILE AND RESIDENCE
1. Notions
According to article 78 FC, the domicile of a person is “a place where he/she has his/her
principal establishment, and where he/she can possibly be reached at any time either directly
or through an intermediary, or where he/she is registered”.
Domicile is the place where a person is legally deemed to be permanently present for the
purpose of exercising his/her juridical activities. In a way it is the person’s registered office.
According to article 73 FC, a person’s residence is “a place where a physical person is
habitually based”. It is actually the permanent place where a person lives.
A place where a person lives is assumed to be his/her residence unless it is proved that he/she
has another residence elsewhere (art.74 FC).
The meaning that emerges from those two definitions is that residence is a factual notion.
Domicile is a legal notion and it is determined by legal provisions. Registration in
“population register” and an “identity card” provide an official evidence of a domicile.
A domicile can be a residence. In this case, the domicile and the residence are
interchangeable. But the domicile can also be located in a place different from that of
residence.
The terms “domicile and residence” in their current usage, or in their official usage or
juridical usage, are very often confused. For example, in the field of criminal law, when we
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talk of ‘violation of domicile”, it can be taken to mean violation of domicile, as well as
residence, housing or lodging of a person, even for a single night.
2. Practical importance of domicile and residence
The lex loci domicilii of a person plays an important practical role:
(1) Importance in the law of procedure
In several cases, the domicile of the defendant determines the competent jurisdiction “ratione
loci”, unless the law provides otherwise.
In case notice or summons con not be given to a person, domicile is the place where he/she
can be notified as regards procedural acts.
(2) Importance in the civil law
Some legal acts regarding family matters must or can be accomplished at the place of
domicile; e.g. marriage, adoption, tutorship.
The succession falls open at the deceased’s domicile.
The domicile is the central place of a person’s financial interest, in the event of measures to
be taken as regards his patrimony, e.g. the debt payment is normally done at the debtor’s
domicile. The determination of a person’s residence plays also an important practical role:
• The residence can sometimes replace the domicile when the latter is not fixed or known.
• Residence and domicile can also stand in direct position to each other as regards legal
effects. For example, marriage can be celebrated by the civil status officer not only at one
of the spouses’ domicile but also at one of their residences.
3. Legal characteristics of domicile and its determination
Necessity and uniqueness of domicile: “Every person must have one and only one
domicile” (Art.79 FC). However, domicile can be transferred following certain administrative
procedures (Art.80 FC).
The family code distinguishes three categories of domicile: domicile of choice, domicile by
operation of law, and domicile by election.
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D. CIVIL STATUS
Every physical person is legally characterised by a set of qualities or attributes to which legal
consequences are attached. That set of qualities is known as the civil status of a person. The
civil status of a person distinguishes him from all other entities. The civil status of a person
therefore personifies him and determines his role in the society and distinguishes him from all
other entities, as far as the enjoyment and exercise of civil rights are concerned. The civil
status determines civil rights of a person.
The person’s status is composed of political, familial, and individual elements.
The political elements (or the political status) determine the legal status of a person
towards the national community Hence, nationals (or citizens) are distinguished from
foreigners within the national community; and foreigners are not systematically accorded
similar political rights as citizens. Citizenship gives the right to participate in public life and
enables him/her to take part in institutions exercising political power within the state.
Familial elements of the person’s status determine his/her position vis-à-vis his/her family
members. The legal status of a person confers upon him/her rights and obligations. The legal
status of a person depends on his/her state of a spouse, father, child, brother or sister, married
or single, aunt or uncle, grand-mother or grand-father, cousin, brother-in-law or sister-in-law
Individual elements of a person’s status depend on factors such as age, gender, and mental
state. Such elements influence the person’s capacity of exercising his/her rights.
In some societies, race, religion, profession, social condition and wealth play a role in
determining the person’s legal status, nevertheless, this situation is no longer common with
the growth of the spirit of equality among human beings. In Rwanda, such elements do not
have legal effect.
In the narrow sense, civil status is the base of a person’s identification; it is at least made up
(composed) of a name, age, filiations, gender and nationality.
In the usual administrative practice, the person’s civil status is often confused with his/her
state of being married or single.
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STUDY UNIT 6. LAW OF TORT
SECTION 1. The Liability for personal acts
1.1. The wrongful act or fault
1.1.1. Culpability
The culpability can consist in the fault as violation of a rule, as a fault without a violation of a
rule or abuse of authority.
A. Fault, violation of a rule
A fault, violation of a rule can concern civil, penal, administrative rules…Example: to steal
something from somebody (fault, violation of criminal law); to injure somebody (fault,
violation of civil and criminal law).
B. Without a violation of a legal text
Without a violation of a legal text, one can commit a fault. This fault is defined as a
behaviour which an ordinarily diligent, prudent, honest person or one mindful of fulfilling
social duties, placed in similar circumstances would not have committed (e.g. behaviour of
the good father of family).
C. abuse of authority
This is a fault that is committed by a person in the exercise of his duties. For example, a head
of a certain Department who obliges his/her secretary to stay at work beyond office hours in
order to have a sexual relationship.
1.1.2. Imputability
It is not sufficient that the act was illegal; it must be attributable to somebody (the
wrongdoer) who has the conscious and free will to do the act. The conscience, capacity and
free will are the three components of imputability.
1. 2. The damage
In order for the victim to be indemnified, there has to be not only the fault but also the
damage. This is the harm to be repaired. Below, we are going to examine the kinds of damage
and its character in written law.
1. 2.1. Various kinds of damages
A. Material damage
This is damage on one’s patrimony. It is defined as attack on one’s patrimony arising from
bodily injury, death or damage to property.
B. Moral damage
The moral damage is the extra-patrimonial damage. It is a damage which does not concern
ones patrimony.
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Type: an attack against one’s personality (an attack against one’s names e.g. changing
someone’s name from KILA to KILLER; attack against one’s honour or the attack on the
reputation of a person, or his feelings of affection. e.g. saying that one is a prostitute when
she is not; etc.
1. 2.2. Characteristics of the reparable damage;
The damage must be actual and certain;
The damage must consist in violation of a legitimate interest (legally protected
interest);
The damage must be direct;
The damage must be personal.
A. The damage must be actual and certain
The damage to be certain means that there is no doubt of its reality. In order to be
compensated, the victim must prove the existence of the damage which he suffered. This
damage must be certain at the time when the judge is evaluating it in order to facilitate him.
The eventual damage cannot be indemnified. For example, a father of a child who was killed
in an accident cannot claim the compensation related to the benefits invoking that his child
could be a President because he was intelligent.
B. THE DAMAGE MUST CONSIST OF THE VIOLATION OF A LEGITIMATE
INTEREST (LEGALLY PROTECTED INTEREST
The damage which the victim claims must be a legitimate damage. It is the interest which is
protected by the law that will be considered. For example, the owner of a property has a right
to request for indemnity because he has a right to property (interest protected by the law). On
the contrary, an illegitimate interest that is not protected by the law cannot be indemnified.
For example, a lady living with a boyfriend (without a marriage relationship) cannot claim
compensation because of the damage that arises from the death of her lover (boyfriend). This
damage is not a violation of an interest protected by the law.
C. THE DAMAGE MUST BE DIRECT
The damage to be compensated must be the direct and immediate continuation of a faulty
behaviour. This characteristic makes it possible to put aside the reparation of many other
consequential damages, which perhaps, could not have been caused by the fault of the
author of the damage. For example, if the School of Finance and Banking (SFB) unjustly
fires its lecturer Dr MUSEMAKWELI, he can claim damages because of the illegal
expulsion. But if Dr MUSEMAKWELI becomes angry (as a result of the expulsion), and
beats and injures his child, he cannot claim compensation from SFB saying that the anger
leading to a slap and injury was caused by SFB act of expulsion. The injury was an indirect
damage compared to the SFB’s action.
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D. THE DAMAGE MUST BE PERSONAL.
The victim must have personally suffered the damage. Thus one must prove that s/he is
victim of the damage. If the action causes damage to various persons, each of them must
prove his/her personal damage.
1.3. The causal relationship
The victim must establish that there is a direct, certain and immediate relationship between
the fault and the damage which has been suffered.
SECTION 2. Liability for acts committed by others
2. 1. The responsibility of parents for the acts of their children
2.1.1. Principle
According to article 260 (2), “the father, and the mother, after the death of the father, is liable
for the damage caused by their children residing with them”. This liability is established
except if the father or mother prove that they did all they could to prevent the action of the
child (art. 260, 5)
2.1.2. Conditions for this liability - of parents for the acts of their children
Article 260 imposes a numbers of conditions for this liability to exist, namely:
- The damage must be caused by the child
- The child must be residing with the parent (article 260(2))
- The damage must be caused by the personal act of the child
2.2. Liability of masters for wrongs of their domestic and agent
2. 2. 1. Principle
According to Art. 260 (3) CC III2, a master/”commettant” is liable for acts of the domestic
(home maid) and agent (worker), if the acts fall within the functions for which they were
employed. A “commettant” is a French word meaning someone who asks another to do
something on his behalf. This is a kind of indirect liability (for the master/commettant)
because the primary liability for the acts of the domestic and agent (worker) is born by them.
2.2.2. Conditions for the liability of a master/commettant for wrongs of a domestic and
agent (worker) respectively
- Relationship of subordination
2 Civil Code Book iii
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- The fault of the domestic or agent (worker)
- The damage is supposed to be caused to a third party, that is to say, any other person other
than the master/commettant
- A relationship between the act of the domestic or agent and the functions which they do
E.g. A domestic who injures somebody who is near him while he is cutting a fish.
2.1.3. The liability of teacher and craftsman for the acts of their students and
apprentices respectively
A. PRINCIPLE
According to article 260 (4) CC III, teachers and craftsmen are responsible for the damage
caused by their students and apprentices respectively.
A teacher is not only one who teaches but also someone who has the role of direction and
supervision within an educational establishment. A craftsman is one who gives a professional
training to the apprentice.
B. CONDITIONS FOR THERE TO BE THIS CIVIL LIABILITY
- the most important condition is one of time. The law indicates that the damage for which
the craftsman and teacher are liable is that which was caused by the student or apprentice
while the latter was under the supervision of the former.
- the act which caused the damage must be the fault of the student or apprentice
The law only talks about teacher and student, craftsman and apprentice. It does not prescribe
that the student or apprentice must be minors.
However, the law creating the National University of Rwanda provides that professors and
lecturers in university are not liable for the actions of their students (article 39 (2) of the
Decree law no 33/76 of 16/09/1976).
- the damage for which teachers and craftsmen are liable are those caused by the students
and apprentices against third parties or those committed between themselves.
- There must be a relationship of artisan and apprentice. This is usually by way of contract of
apprenticeship.
2.1.4. Liability of the damage caused by things.
In the section below, we will study the liability for the damage caused by animals (art. 261
(2) of CC III); ruins of buildings (art. 262 of CC III) ; and for lifeless things ( art. 260, Para
1).
A. LIABILITY FOR THE DAMAGE CAUSED BY ANIMALS
1. Principle
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According to article 261 CC III, the owner of the animal or one who uses it during the time of
its usage, is liable for the damage which the animal has caused, whether it was kept by him,
escaped or lost. Therefore, the legally liable person is either the owner, or one who keeps it
(the keeper).
2. Conditions of application of this liability
These conditions concern the animal and the one liable for it.
2.1. The concerned animal and its behaviour
Here, the concerned animal is one that is domestic or even wild if the latter was caught and
made domestic.
These animals may be dangerous or harmless. We therefore consider all animals without
distinction of their zoological nature: domestic animals or others (dog, goat, pig, cat, monkey,
rabbit, bees in hives, etc.)
- The behaviour of the animal is also important, and it must be a positive one. The animal
must do a positive act.
2.2. The liable person
According to article 261 CC III the liable person is the owner of the animal which caused the
damage or its keeper while it is being used by him.
In general, the owner of the animal (this is why the law firstly cites him or her) or its keeper.
The keeper can be “an independent keeper” or “a professional keeper”
1° an independent keeper
This is the owner or the hirer of the animal. When the owner of the animal hires it out, it
means that he has transferred all the care and duty towards the animal to another person.
Then if the animal causes damage to someone, the hirer is liable and must indemnify the
victim.
Another situation is when the owner of the animal loses its custody, for example when it has
been stolen. Then the thief becomes the keeper of the animal and the liable person. But
someone who abandons the animal cannot be considered as the one who loses its custody and
will therefore be liable for its damage.
2° the professional keeper
Someone who takes care of an animal on a professional level is considered to be its keeper
and will therefore be liable under article 261 CC III. An example could be a veterinarian who
treats the animal and is liable for the damage which it causes during the time when the animal
is under his care.
Also, someone in a circus who trains animals while exercising, dancing, running, etc., is
liable for the damage caused by these animals while they are under his care.
2.1. Liability for the damage caused by the ruins of a building
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2.1.1. The principle
According to article 262 CC III, the owner of the building is liable for the damage caused by
its ruins when the ruins were caused by a result of default of maintenance or a construction
defect.
Here, the owner of the building is liable, contrary to the case of the animal (article 261CC III)
where the owner and others may be liable for the damage caused by the animal.
A. Necessary condition
According to article 262 CC III, three conditions have to be met in order to establish the
liability of the owner of the building.
a) There must be a building. The primary meaning of a building should be understood as a
normal construction.
b) the damage must be caused by the ruins of the building: in other words, when the building
or a part of the building falls. This is different from the building in ruins, meaning that
building has already fallen. The article (article 262 CC III) does not apply in this second
case.
c) the origin of these ruins can either be caused by the default of maintenance or a
construction defect.
Article 262 CC III does not consider other causes of ruins like those falling because of a fire,
or car accident.
B. DEFENCES
a) case of force-majeure if it is not caused by default of maintenance or a construction
defect.
b) The exclusive fault of the victim
There is an exclusive fault of the victim when the latter knows the deteriorating situation
of the building (for example if the owner posts the sign clearly indicating that the building
is in ruins) and the victim sustains an injury after passing nearby.
C. LEGAL ACTIONS OF THE OWNER
The owner can have legal actions against:
1. The architect or entrepreneur in case of default in construction
But this kind of action is prescribed after 10 years from the time the owner receives the
building (article 439 CC III)
2. The tenant if the owner proves that there was default of maintenance (a failure of an
obligation resulting from the contract).
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STUDY UNIT 7. LAW OF CONTRACT
SECTION 1. General overview on Contract
1.1. The scope of the law governing contract
The article one of the new legislation governing contracts has defined the scope of the law in
order to clarify the parts of the Civil Code Book III that will remain applicable after the new
law becomes into force. The provisions of article one to article 248 of the Civil Code book III
will be repealed. The other parts of the Civil Code Book III are still under review and there
will be new laws completing the legal framework governing Obligations in Rwanda such as
Tort liability Law and special contracts
1.2. Interpretation principle
The law governing contract refers to the Common Law and it is usual in the common Law
drafting rules to have an interpretation section establishing definition of basic terms
appropriate for the Law to be drafted.
Article 2 of the new law, No. 45/2011 of 25/11/2011 Governing Contracts, gives definitions
for some basic terms such as contract, promise, promisor, and promise and beneficiary.
1° “contract”: a promise or a set of promises the performance of which the Law recognizes as
obligation and the breach of which the Law provides a remedy; …
It is a definition from the American Restatement of Law, Second, Contracts:
A contract is an agreement entered into voluntarily by two parties or more with the
intention of creating a legal obligation, which may have elements in writing, though
contracts can be made orally. The remedy for breach of contract can be "damages" or
compensation of money. In equity, the remedy can be specific performance of the contract or
an injunction. Both of these remedies award the party at loss the "benefit of the bargain" or
expectation damages, which are greater than mere reliance damages, as in promissory
estoppel. The parties may be natural persons or juristic persons. A contract is a legally
enforceable promise or undertaking that something will or will not occur. The word promise
can be used as a legal synonym for contract. although care is required as a promise may
not have the full standing of a contract, as when it is an agreement without
consideration.
A promise is a manifestation by the promisor of an intention to act or to refrain from acting
that thereby gives the promise reasonable grounds to believe the promisor is making a
commitment to so act or refrain. All terms defined in this article refer to the American
Restatement of law.
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1.3. Requirements of a contract
The four basic requirements of a valid contract are as follows: Mutual assent, capacity,
legality of purpose and consideration. The new law governing contracts enumerates the basic
requirements in its article 2 but without any comprehensive definition. They are developed in
the chapter on formation of contracts.
1.3.1 Mutual assent
The parties to a contract must manifest by words or conduct that they have agreed to enter
into a contract. The usual method of showing mutual assent is by an offer followed by an
acceptance
1.3.2 Capacity
The parties to a contract must have contractual capacity. Certain persons such as adjudicated
incompetents have no legal capacity to contract while others such as minors, incompetent
persons, and intoxicated persons have limited capacity to contract. All others have fully
contractual capacity.
1.3.3 Legality of Purpose
The purpose of the contract must not be criminal, tortuous or otherwise against the public
policy. An illegal contract is unenforceable.
1.3.4 Consideration
Each party to a contract must intentionally exchange a legal benefit or incur a legal detriment
as an inducement to the other party to make a return promise.
1.4. Classification of contracts
Article 3 gives the standards classifications of the Common Law contract law according to
various characteristics such as method of formation, content, and legal effect.
The standard classifications are (1) express or implied contracts; (2) bilateral or unilateral
contracts; (3) valid, void, voidable or unenforceable contracts, and (4) executed or executory
contracts. The article 3 mentioned the three first categories and some additional categories
from the Civil Code Book III such as gratuitous contracts or formal contracts.
The classifications are not mutually exclusive. A contract may be express, bilateral, valid,
executor and informal.
1.4.1 Bilateral and unilateral contracts
A bilateral contract results from the exchange of a promise for a return promise whereas a
unilateral contract results from the exchange of a promise either for performing an act or for
refraining from doing an act. The interpretation section gives the following definition: A
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bilateral contract is a contract in which the parties have reciprocal obligations and unilateral
contract as a contract in which obligees do not have obligations.
The Common Law tradition followed by the American Restatement defined an unilateral
contract as one where one party promises a benefit if the other performs an act. The second
party has no obligation to perform but if he does, a contract is formed.
In Common Law, where it is not clear whether a unilateral or bilateral contract has been
formed, the courts presume that the parties intended a bilateral contract.
1.4.2 Express and implied contract
Parties to a contract may indicate their assent by conduct implying such willingness. Such a
contract formed by conduct is an implied contract or more precisely, an implied in fact
contract. In contrast, a contract in which the parties manifest assent in words is an express
contract.
Both are contracts, equally enforceable. The difference is merely the manner in which the
parties manifest their assent.
1.4.3 Valid, void, voidable, and unenforceable contracts
By definition a valid contract is one that meets all of the requirements of a binding contract.
It is an enforceable promise or agreement.
A void contract is not a contract at all such as an agreement entered into by an incompetent
person or by physical compulsion.
A voidable contract on the other hand, is not wholly lacking legal effect. A voidable contract
is a contract; however, because of the manner in which the contract was formed or lack of
capacity to it, the law permits one or more of the parties to avoid the legal duties created by
the contract. If the contract is voided, both parties are discharged of their legal duties under
the agreement.
A party may also have power to ratify a voidable contract and thereby eliminate any power to
extinguish the legal relations arising from the contract. Consequences of avoidance may
differ, depending on the circumstances. The party who avoids the contract may, in the
circumstance, be entitled to be restored to as good a position as that which he occupied
immediately before entering the contract; or depending on the circumstances, may be left in
the same condition as before the contract. If a party cannot be restored to substantially the
same original position, the Court may decide there is no power of avoidance.
In some circumstances, the power of avoidance may be lost by unreasonable delay in
manifesting election to avoid or in returning benefits received under a contract
1.4.4 Unenforceable contract
A contract that is neither void nor voidable may nonetheless be unenforceable. An
enforceable contract is one for the breach of which the law provides no remedy. For example,
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in the application of the law of limitations or prescription, after the statutory time period has
passed, a contract is referred to as an unenforceable contract, rather that void or voidable.
1.4.5 Formal contracts
Some types of contracts, which may be called “Formal Contracts”, are subject in some
aspects to special rules that differ from some of the rules that govern contracts in general;
contracts under seal, negotiable instruments, negotiable documents, and letters of credit,
those formed by electronic means.
1.4.6 Gratuitous contracts
It is a type of contract from the Civil Code Book III which should be equivalent as a contract
without consideration.
1.4.7 Quasi contracts
There are in Civil Code Book III provisions on quasi contracts. , these are at common law
implied in law contracts which were not included in the previous classifications for the
reason that quasi contracts are not contracts at all. There will be a specific law on quasi
contracts, the draft bill is already prepared under the Ministry of Justice avoid injustice. The
term contract is used because the remedy granted for the breach of a quasi contract is similar
to one of the remedies available for the breach of contract on a restitution basis.
1.4.8 Promissory Estoppel
The new law is silent on the concept of promissory estoppel but it is an important concept in
Common Law.
As a general rule, promises are not enforceable if they do not meet all the requirements of a
contract. Nevertheless, in certain circumstances at Common Law, the courts enforce non-
contractual promises under the doctrine of promissory estoppel in order to avoid injustice.
Promissory estoppel requires:
1. an unequivocal promise by words or conduct
2. evidence that there is a change in position of the promisee as a result of the promise
(reliance but not necessarily to their detriment)
3. inequity if the promisor were to go back on the promise
In general, estoppel is 'a shield not a sword' . It cannot be used as the basis of an action on its
own, equally, it does not extinguish rights.
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SECTION 2. Contract formation
2.1. Requirements regarding parties
For the contract formation, there must be at least two parties, a promisor and a promise, but
there may be multiple promisors and promisees.
2.2. Requirements relating to the capacity to contract
Everyone is regarded as having legal capacity to enter into contracts unless the law, for public
policy reasons, holds that the individual lacks such capacity. It is the case for minors, persons
under guardianship, mentally ill or ‘defective’.
2.2.1 Minors
A minor also called infant is a person who has not attained the age of legal majority. At
common law, a minor was an individual who had not reached the age of twenty-one years.
Today, the age of majority has been changed by statute in nearly all jurisdictions, usually to
age eighteen. In Rwanda, except otherwise provided, the age of majority is twenty-one years.
In commercial matters, the majority is sixteen years while for the employment contract, the
majority is eighteen.
A minor‘s contract whether executed or executory is voidable at his guardian’s option. Thus
the minor is placed in favoured position by having the option to disaffirm the contract or to
make it enforceable.
The exercise of the power of avoidance, called disaffirmance, releases the minor from any
liability under the contract.
On the other hand, after the minor becomes of age, he may choose to adopt or ratify the
contract, in which case he surrenders his power of avoidance and becomes bound by his
ratification.
A minor may disaffirm a contract within a reasonable time after coming of age as long as he
has not already ratified the contract. Determining reasonable time depends on circumstances
such as the nature of the transaction and whether either party has caused delay. Some
jurisdictions prescribe a time period within which the minor may disaffirm the contract.
A minor has the option of ratifying a contract after reaching the age of majority. Ratification
makes the contract binding from the beginning (ab initio). Once effected, ratification is final
and cannot be withdrawn; further more, it must be in total, validating the entire contract
Contractual incapacity does not excuse a minor from an obligation to pay for necessaries such
as food, shelter, medicine and clothing that suitably and reasonably supply his personal
needs.
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2.2.2 Person under guardianship
If a person is under guardianship, his/her contract is void and of no legal effect. Nonetheless,
a party dealing with an individual under guardianship may be able to recover the fair value of
any necessaries provided to him/her.
2.2.3 Mental defect
The parties to a contract must have a certain level of mental capacity if a person lacks such
capacity, he is mentally incompetent and the contract entered into by such a person is
voidable
A person is mentally incompetent if he is unable to comprehend the subject of the contract,
its nature and its foreseeable consequences. Contracts entered into may be ratified or
disaffirmed during a lucid period.
2.2.4 Intoxicated persons
The provisional draft had a provision on intoxicated persons that had been considered as
covered by the provision on mental illness or defect but in other jurisdictions, intoxicated
persons are treated separately because the courts are even more strict with intoxicated persons
due to its voluntary nature. The intoxicated person regaining his capacity must act promptly
to disaffirm and generally must offer to restore the consideration he has received. Individual
persons who are taking prescribed medicine or who are involuntarily intoxicated are treated
the same as the person with mental illness or defect.
2.3. Mutual assent; an offer followed by an acceptance
Though each of the requirements for a valid contract is essential to its existence, mutual
assent is so basic that frequently a contract is referred to as an agreement between parties.
Mutual assent of parties consists of an offer by one party followed by acceptance by the other
party.
The way in which parties usually show mutual assent is by offer and acceptance. One party
makes a proposal (offer) by words or conduct to the other party who agrees by words or by
conduct to the proposal (acceptance).
The important thing is what the parties indicate to one another, by spoken or written words,
by conduct, electronic means, or even by failure to act in some circumstances.
The law applies an objective standard and is concerned only with the assent or intention of a
party as it reasonably appears from his words or actions. The law of contract is not concerned
with what a party may have actually thought or the meaning that he intended to convey even
if his subjective understanding or intention differed from the meaning he objectively
indicated by words or conduct.
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2.3.1 Offer
Definition and essentials of an Offer
An offer is a manifestation of a willingness to enter into a contract made in a manner so as to
justify another person in understanding that his or her assent is invited and will conclude the
contract.
The person making an offer is the offeror and the person to whom the offer is made the
offeree.
An offer needs not to take any particular form to have legal effect. It may propose the
formation of a single contract by a single acceptance or formation of a number of contracts by
separate acceptance.
In case of doubt, an offer is to be interpreted as inviting the offeree to accept either by
promising to perform what the offer requests or by rendering the performance, as the offeree
chooses.
To be effective however, it must be communicated, manifest intent to enter into a contract
and sufficiently certain and definite.
Invitation to Treat
Invitation to treat (also known as an invitation to bargain in the United States) is a contract
law term. It is derived from the Latin phrase invitatio ad offerendum and means "inviting an
offer". It suggests in other words an expression of willingness to negotiate on something but
it does not mean that the person making the invitation is bound to go through with the
transaction as they would be if they were making an offer.
A shop owner displaying their goods for sale is generally making an invitation to treat
(Pharmaceutical Society of Great Britain v Boots Cash Chemists (Southern) Ltd [1953] 1 QB
401). They are not obliged to sell the goods to anyone who is willing to pay for them, even if
additional signage such as "special offer" accompanies the display of the goods.
Generally, advertisements are invitations to treat, so the person advertising is not compelled
to sell to every customer. In certain circumstances however, an advertisement can be treated
in legal terms as an offer, as occurred in the British case of Carlill v Carbolic Smoke Ball
Company [1893].
For an offer to be capable of becoming binding on acceptance, it must be definite,
unambiguous, and final. If it is rather a preliminary move as part of a negotiation process
which may lead to a contract, it is not an offer but an invitation to treat. An offer may, or
may not, result in such a situation. The offerer must have been initiating negotiations from
which an agreement may or may not in time result. An invitation to treat cannot therefore be
responded to by a legal act of acceptance as no offer in a legal sense has been made. Rather
the recipient of the invitation to treat may respond and in their turn therefore makes an offer
themselves to which the party initiating the invitation to treat can therefore respond to
potentially create a legal contract by their acceptance.
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Communication of an Offer
To provide his part of the mutual assent required to form a contract, the offeree must know
about the offer; he cannot agree to something about which he has no knowledge.
Accordingly, the offeror must communicate the offer in an intended manner.
Intent to enter into a contract
To have legal effect, an offer must manifest intent to enter into a contract. The intent of an
offer is determined objectively from the words or conduct of parties. The meaning of either
party’s manifestation is based on what a reasonable person in the other party’s position would
have believed.
It is important to distinguish language that constitutes an offer from that which merely invites
offers.
If a communication creates in the mind of a reasonable person in the position of the offeree
an expectation that his acceptance will conclude a contract, then the communication is an
offer. If it does not, then the communication is a preliminary negotiation.
Definiteness and certainty of an offer
Even though a manifestation of intention is to be understood as an offer, it cannot be accepted
so as to form a contract, unless the terms of the purported contract are reasonably certain or
can be made reasonably certain from the manifestation of parties in the circumstances.
The terms are reasonably certain if they provide a sufficient basis for determining the
existence of a breach and for providing an appropriate remedy.
Part performance may remove the uncertainty of terms and establish an enforceable contract
and action, in reliance on an agreement, may make a contractual remedy appropriate even
though uncertainty is not removed.
Missing terms may be supplied by course of dealing, usage of trade, but in most cases,
material terms would include the subject matter, price, quantity, quality, terms of payment
and duration.
Duration of an offer
An offer confers upon the offeree a power of acceptance which continues until the offer
terminates.
The ways in which an offer may be terminated, other than by acceptance are through Lapse
of time, revocation, rejection, counteroffer, death or incapacity of the offeror or the offeree,
destruction of the subject matter to which the offer relates and, subsequent illegality of the
type of contract the offer proposes.
(1) Lapse of time: “The offeree’s power of acceptance is terminated at the time specified in
the offer, or if no time is specified, at the end of a reasonable time”. The offeror may specify
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the time within which the offer is to be accepted. Unless otherwise terminated, the offer
remains open for the specific time. Upon the expiration of that time, the offer no longer exists
and cannot be accepted and any purported acceptance of an expired offer will serve only as
an offer.
If the offer does not state the time within which the offeree may accept, the offer will
terminate after a reasonable time. Determining a reasonable time is a question of fact,
depending on all the circumstances existing when the offer and attempted acceptance are
made.
The provisional draft stated that unless otherwise indicated by the language or circumstances,
an offer sent by email is reasonably accepted if an acceptance is mailed at any time before
midnight on the day on which the offer is received - referring to the restatement, section 41
and the Uniform Commercial Code 1-303 but this provision was removed during the
legislative process as a detail that would be not really applicable in a Rwandan context. For
the same reason, article 48 of the provisional draft has been removed:
“If a communication of an offer to the offeree is delayed, the period within which a contract
can be created by acceptance is not thereby extended if the offeree knows or has reason to
know of the offer, even though the delay is due to the fault of the offeror ; but if the delay is
due to the fault of the offeror or to the means of transmission adopted by him, and the offeree
neither knows nor has reason to know that there has been delay, a contract can be created by
acceptance within the period of delay which would had been permissible if the offer had been
dispatched at the time that its arrival seems to indicate”.
(2) Rejection of an offer: An offeree is at liberty to accept the offer as he sees fit. If he
decides not to accept it, he is not required to reject it formally but may simply wait until the
offer laspses or terminates. Therefore, rejection by the offeree may consist of express
language or may be implied from language or conduct.
A manifestation of intent not to accept an offer is a rejection unless the offeree manifests an
intention not so to treat it, as by announcing he will merely take the offer under advisement.
A communicated rejection terminates the power of acceptance. From the effective moment of
rejection which is, in common jurisdictions, the receipt of the rejection by the offeror, the
offeree may no longer accept the offer.
(3) Revocation: The offeror generally may cancel or revoke an offer at any time prior its
acceptance. An offeree’s power of acceptance is terminated when the offeree receives from
the offeror a manifestation of an intention not to enter into the purported contract but an
offeree’s power can be terminated by indirect communication as when the offeror takes
definite action inconsistent with an intention to enter into the purported contract and the
offeree acquires reliable information to that effect.
An offer made to the general public is revoked only by giving to the revocation publicity
equivalent to that given to the offer if no better means of notification is available.
Certain limitations however restrict the offer’s power of acceptance but were removed from
the final voted bill.
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Option contracts: An option is a contract by which the offeror is bound to hold open an offer
for a specified period of time. It must comply with all the requirements of a valid contract,
including the offeree’s giving of consideration to the offeror.
Irrevocable offer of unilateral contracts: Where the offer contemplates a unilateral contract,
injustice to the offeree may result if revocation is permitted after the offeree has started to
perform the act requested in the offer and has substantially but not completely performed the
requested act.
Revocation of an offer proposing multiple contracts: An offer contemplating a series of
independent contracts by separate acceptances may be effectively revoked so as to terminate
the power of acceptance for future contracts, though one or more of the proposed contracts
have already been formed by the offeree’s acceptances.
(4) Counteroffer: A counteroffer is an offer made by an offeree to his offeror relating to the
same matter as the original offer but on terms or conditions different from those contained in
the original offer. It is not an acceptance of the original offer, but by indicating an
unwillingness to agree to the terms of the offer, it generally operates as a rejection. But It
may also operate as a new offer – the counteroffer.
An offeree’s power of acceptance is terminated by his making of a counter-offer, unless the
counteroffer manifests an intention of the offeree that the original offer remains open or the
offeror has manifested a contrary intention
A rejection or counter offer by mail or telegram does not terminate the power of acceptance
until received by the offeror.
(5) Death or incompetency: The death or incompetency of either the offeror or the offeree
ordinarily terminates an offer. On his death or incompetency, the offeror no longer has legal
capacity to enter into a contract; thus all outstanding offers are terminated. Death or
incompetency of the offeree terminates also the offer, because an ordinary offer is not
assignable and may be accepted only by the person to whom it was made.
The death or incompetency of the offeror or the offeree however does not terminates an offer
contained in an option because of the consideration given.
(6) Destruction of the subject matter: Destruction of the specific subject matter of an offer
terminates the offer. A offers to sell a car to B. the Car is destroyed by fire in the night. The
next morning B accepts the offer. There is no contract because the offer was terminated
before the acceptance of B.
(7) Subsequent illegality: Subsequent illegality is illegality taking effect after the making of
an offer but prior to acceptance. A subsequent illegality legally terminates the offer.
2.3.2 Acceptance of an offer
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Acceptance of an offer is a manifestation of assent to the terms of the offer made by the
offeree in a manner invited or required by the offer.
An offer can be accepted only by a person to whom it is intended. It must comply with the
terms of the offer as to the promise to be made or the performance to be rendered.
Modes of acceptance
The offeree’s acceptance may be by performance or my return promise.
An offer can be accepted by rendering performance only if the offer invites such a
performance. Even if the offer invite acceptance by performance, the rendering of a
performance does not constitute an acceptance if within a reasonable time and before the
offeree performs relevant acts, he exercises reasonable diligence to notify the offeror of
non-acceptance.
Notification of acceptance
Where an offer invites an offeree to accept by rendering a performance like in case of
unilateral contract, no notification to the offeror is necessary to make such an acceptance
effective unless the offer requests such a notification.
Article 22-2 provides for an exception to the principle in respect to the requirement of good
faith during the course negotiations.
If the offeree has reason to know that the offeror has no adequate means of learning of the
performance with reasonable promptness and certainty, the offeror is not obligated, unless
the offeree exercises reasonable diligence to notify the offeror of the acceptance, the offeror
learns of the performance within a reasonable time or the offer indicates that notification of
acceptance is not required.
In case of acceptance by promise, it is essential that the offeree exercise diligence to notify
the offeror of acceptance or that the offeror receive the acceptance within a reasonable time,
except where acceptance by silence is possible.
Acceptance by silence
An offeree is generally under no legal duty to reply to an offer. Silence or inaction therefore
does not indicate acceptance of the offer. However, by custom, usage, course of dealing, the
offeree’s silence or inaction by an offeree may operate as an acceptance. Thus, the silence or
inaction of an offeree can operate as an acceptance and cause a contract to be formed where
by previous dealings the offeree has given the offeror reason to understand that the offeree
will accept all offers unless the offeree sends notice to the contrary.
Silence operates as an acceptance also where the offeree takes benefits from the offer with
reasonable opportunity to reject them and reason to know that they were offered with
expected consideration.
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Silence may also operate as an acceptance where the offeror has stated or given the offeree
reason to understand that assent may be manifested by silence or inaction, and the offeree in
remaining silent and inactive intends to accept.
But care must be taken. Simply putting into the offer a term such as “If I do not hear from
you I shall assume you have accepted the offer” may not be, in common law, the same as a
silent acceptance.
Time when acceptance takes effect
The new law governing contract has no specific provision specifying the issue but generally
an acceptance is effective upon dispatch unless the offer specifically provides otherwise; such
as the offeree uses an unauthorized means of communication or the acceptance follows a
prior rejection.
Article 62 of the provisional draft removed was clear on the principle of acceptance upon
dispatch in the following terms:
“Unless the offer provides otherwise:
• An acceptance made in a manner and by medium invited by an offer is effective as put
out of the offeree’s possession, without regard to whether it is ever reaches the offeror
; but
• An acceptance under an option is not effective until received by the offeror.
Then, it is clear that the offer is effective on receipt while the acceptance is effective on
dispatch.
Acceptance by telephone or similar medium of substantially instantaneous two way
communication is governed by the principles applicable to acceptance where the parties are
in the presence of each other.
Reasonableness of medium of acceptance
Unless circumstances known to the offeree indicate otherwise, a medium of acceptance is
reasonable if it is the one used by the offeror or one customary in similar transactions at the
time and place the offer is received. It is also called “authorized means of communication”.
Historically, authorized means of communication was either the means the offeror expressly
authorized in the offer or, if none was authorized, the means the offeror used in presenting the
offer.
If in reply to an offer by mail, the offeree places in the mail a letter of acceptance properly
stamped and addressed to the offeror, a contract is formed at the time and place that the
offeree mails the letter. This assumes that the offer was open at that time. The reason for this
rule is that the offeror by using the mail implicitly authorized the offeree to use the same
means of communication. It is immaterial if the letter of acceptance goes astray in the mail
and is never received.
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2.4. Consideration
2.4.1 Consideration and cause
The concept of consideration is slightly different from the concept of cause used in Civil Law
The doctrine of consideration ensures that promises are enforced only where the parties have
exchanged something of value in the eye of the law. Gratuitous promises, those made without
consideration, are not legally enforceable except under some circumstances.
A performance or a promise by the promisee is a consideration if it is established as such by
the promisor and is given by the promise in exchange for that promise.
The consideration exchanged for the promise may be an act, forbearance to act, or a promise
to do either of these.
The law does not regard the performance of, or the promise to perform a pre-existing legal
duty, public or private, as a consideration.
The consideration for a promise must be either a legal detriment to the promisee or a legal
benefit to the promisor. The promisee must give up something of legal value, or the promisor
must receive something of legal value in return for the promise.
Legal benefit means the obtaining by the promisor of that which he had no prior legal right to
obtain.
2.4.2 Adequacy of consideration or mutuality of obligation
The law will regard the consideration as adequate if the parties have agreed to the exchange.
The requirement of legally sufficient consideration is therefore not at all concerned with
whether one party received disproportionately more or less that he gave or promised to give.
Such facts however may be relevant to the availability of defence such as fraud, duress or
undue influence or certain remedies such as specific performance.
The provisional draft was clear on the issue of adequacy of consideration contemplated in
article 35 of the voted law:
“If the requirement of consideration is met, there is no additional requirement of
(1) a gain ,advantage, or benefit to the promisor or a loss, disadvantage or detriment to the
promisee,
(2) equivalence in the values exchanged ; or
(3) mutuality of obligation.”
Rules governing consideration
Consideration must not be in the past: If one party voluntarily performs an act and the other
party the makes a promise, the consideration for the promise is said to be in the past. Past
consideration is regarded as no consideration at all.
Example, John gives Susan a lift home in his car after work. On arrival Susan offers John
1,000 francs towards the petrol but, finding that she has not any change, says she will give
him the money next day at work.
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In this example, John cannot enforce Susan’s promise to pay 1,000 francs because the
consideration for the promise (giving the lift) is in the past. John would have given Susan the
lift home without expecting payment and also there was no bargain between the parties.
Re McArdle (1951)Ch 669 Court of Appeal (in UK)
Mr McArdle died leaving a house to his wife for her lifetime and then to his children. While
Mrs. McArdle was still alive, one of the children moved into the house. The wife made
improvements to the house costing £ 488. After the work had been completed, all the children
signed a document in which they promised to reimburse the wife when their father’s estate
was finally distributed. The court of appeal held that this was a case of past consideration.
The promise to pay £ 488 to the wife was made after the improvements had been completed
and was, therefore, not binding. The rule about past consideration is not strictly followed. If,
for example, a person is asked to perform a service, which he duly carries out, and later a
promise to pay is made, the promise will be binding.
Re Casey’s Patents, Stewart v. Casey (1892)
Casey agreed to promote certain patents which had been granted to Stewart and another. (A
patent gives the holder exclusive right to profit from an invention) Two years later Stewart
wrote to Casey promising him a one–third share of the patents in consideration of Casey’s
efforts. It was held that Stewart’s original request raised an implication that Casey’s work
would be paid for the later letter merely fixed the amount of the payment.
Consideration must move from the promisee: An action for breach of contract can only be
brought by someone who has himself given consideration. A stranger to the consideration
cannot take advantage of the contract, even though it may have been made for his benefit.
Tweddle V Atkinson (1861)
John Tweddle and William Guy agreed that they would pay a sum of money to Twaddle’s
William, who had married Guy’s daughter. William Guy died without paying his share and
William sued his late father – in- law’s executor (Atkinson). His claim failed because he had
not provided any consideration for the promise to pay.
Consideration must not be illegal. The courts will not entertain an action where the
consideration is contrary to a rule of law or is immoral.
Consideration must be sufficient but need not be adequate. It must be possible to attach some
value to the consideration but there is no requirement for the bargain to be strictly
commercial. If a man is prepared to sell his Jaguar car for £1, the court will not help someone
who complains of making a bad bargain. The following are examples of cases where the
consideration was of little value, but, nevertheless, it was held to be sufficient.
Thomas v Thomas (1842)
After the death of her husband Mrs. Thomas agreed to pay rent of £1 a year in order to
continue living in the same house. It was held that the payment of £ 1 was valid
consideration.
A person who promises to carry out a duty which he is already obliged to perform is in reality
offering nothing of value. The consideration will be insufficient. However, if a person does
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more than he is bound to do, there may be sufficient consideration. The promise may involve
a public duty imposed by law.
Hartly v Ponsonby (1857)
When almost half of the crew of a ship deserted, the captain offered those remaining £40 to
complete the voyage. In this case, the ship was so seriously undermanned that the rest of the
journey had become extremely hazardous. It was held that this fact discharged the sailors
from their existing contract and left them free to enter into a new contract for rest of the
voyage.
2.4.3 Contracts without consideration
Certain transactions are enforceable even though they are not supported by consideration.
Promises to perform prior unenforceable obligations
These situations include promises to pay debts barred by prescription, debts discharged in
insolvency proceedings, voidable obligations and moral obligations.
Promise for benefit received
The article 39 of the law governing contracts has made enforceable promise without
consideration for benefit received based on the concept of promissory estoppel.
The practice at Common Law is to make enforceable promises for benefit received based on
the doctrine of promissory estoppel. The doctrine makes gratuitous promises enforceable to
the extent necessary to avoid injustice. The doctrine applies when a promise that the promisor
should reasonably expect to induce detrimental reliance and does induce such action or
forbearance.
Promissory estoppel does not mean that a promise given without consideration is binding
because of change of position on the part of the promisee. Such a change of position in
justifiable reliance on the promise creates liability if injustice can be avoided only by the
enforcement of the promise
Promise modifying existing contract
A promise modifying a duty under a contract not yet fully performed is binding;
(1) If the modification is fair and equitable in view of circumstances not anticipated when the
contract was made;
(2) If it is provided by specific law;
(3) In case of material change which results into the change of obligations for both parties.
Contracts under seal
Under the common law, when a person desired to bind himself by deed or solemn promise,
he executed his promise under seal. No consideration for his promise was necessary.
Article 41 of Itegeko No. 45/2011 Ryo Kuwa 25/11/2011 Ringengo Amasezerano
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(Law No. 45/2011 of 25/11/2011 Governing Contracts refers to this practice in the
followings terms:
Article 41: Validity requirements for contracts without consideration
A promise without consideration is binding if:
1° it is in a written form and signed;
2° the document containing the promise is delivered to the promisee;
3° the promisor and the promisee are named in the document or are otherwise identified.
The provisions above raised debates among Rwandan lawyers and most jurisdictions have
eliminated the practice.
2.5. A mandatory writing form for some contracts
2.5.1 Contracts within the statute of frauds
Although most contracts do not need to be in writing to be enforceable, it is highly desirable
that significant contracts be written. Written contracts avoid many problems and the process
of setting down contractual terms in a written document also helps to clarify the terms and
bring to light the problems the parties might not otherwise foresee.
But still the principle is the freedom of contracts except for some contracts said to be “within
the statute of frauds”. To be enforceable the contracts within the statute of frauds must be
evidenced by a signed writing.
In most Common Law jurisdictions, the contracts called “within the statute of frauds” are as
follows:
(1) Promises to answer for a duty of another;
(2) Promises of an executor or administrator to answer personally for a duty of the decedent
whose funds he is administering;
(3) Agreements upon consideration of marriage;
(4) Agreements for transfer of an interest in land;
(5) Agreements not to be performed within one year;
A sixth type of contract within the original English statute of frauds applied to contracts for
sale of goods.
Article 42 refers to the practice and enumerates contracts under risk of frauds that should be
evidenced in writing:
(1) Contract the duration of which exceeds one year
(2) Contract for the sale of an interest in land;
(3) Contract to act as a surety.
(4) Contract for the sale of goods for the price of 50,000Rwf or more;
(5) Contract for the sale of securities.
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2.5.2 Requirement
Most modern jurisdictions require that the contract be evidenced in writing to be enforceable.
The purpose in requiring writing is to ensure that the parties have actually entered into a
contract. It is, therefore not necessary that the writing be in existence when parties initiate
litigation; it is sufficient to show the memorandum existed at one time, even if the parties
themselves view it as having no legal significance.
The provisional draft had details on compliance with the requirement removed in the final
voted bill, specifying that the note or Memorandum must
(i)Specify the parties to the contract
(ii)Specify with reasonable certainty the subject matter of the contract and the essential terms
of the unperformed promise and,
(iii)be signed by the party to be charged or by his/her agent.
3. Vitiation and illegality
In addition to requiring agreement through offer and acceptance, the law requires that the
agreement be voluntary and knowingly. If these requirements are not met, then the agreement
is either voidable or void.
This part deals with situations in which the consent manifested by one of the parties to the
contract is not effective because it was not knowingly and voluntarily given. We consider
four such situations in this part: mistake, misrepresentation, duress, undue influence and the
case of illegality for which the contract is unenforceable.
3.1 Mistake
‘Mistake’ is a belief that is not in accord with the facts. The cases on mistake as a vitiating
factor fall into two main groups: In the first, the parties make the same mistake: e.g. both
think that the subject matter exists when it does not; in the second, one of the parties is
mistaken.
3.1.1 Various kinds of mistakes
Mistake is of two basic types, i.e. mutual mistake and unilateral mistake.
Common or mutual mistake: Common mistake occurs when both parties are mistaken as to
the same set of facts. “Where a common mistake of both parties at the time a contract was
made as to a basic assumption on which the contract was made has a material effect on the
agreed exchange of performances, the contract is voidable by the adversely affected party,
unless he/she bears the risk of the mistake”.
Mistake of one party or unilateral mistake: A unilateral mistake occurs when only one of the
parties is mistaken. “Where a mistake of one party at the time a contract was made as to a
basic assumption on which he made the contract has a material effect on the agreed exchange
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of performances that is adverse to him, the contract is voidable by him if he does not bear the
risk of the mistake if:
(1) The effect of the mistake is such that enforcement of the contract would be
unconscionable; or
(2) the other party had reason to know of the mistake or his fault caused the mistake”.
3.1.2 Assumption of risk of mistake
A party who has undertaken to bear the risk of a mistake will not be able to avoid the
contract, even though the mistake (which may either be common or unilateral) would have
otherwise permitted the party to do so.
“A party bears the risk of a mistake when:
(1) the risk is allocated to him by agreement of the parties; or
(2) he is aware, at the time the contract is made, that he has only limited knowledge with
respect to the facts to which the mistake relates but treats his limited knowledge as
sufficient”.
3.1.3 Effect of the mistake
Principle: The feature which is common to the two situations of mistake (common mistake
and unilateral mistake) is that the mistake must be fundamental (where the parties are
mistaken as to the existence of the subject matter) so that a party cannot rely on a ‘mistake’
which has led him merely to make a bad bargain. Then the principle is that a fundamental
mistake makes the contract void.
Effect of fault of party seeking relief: The principle is that “[a] mistaken party’s fault in
failing to know or discover the facts before making the contract does not bar him from
avoidance or reformation (..), unless his fault amounts to a failure to act in good faith and in
accordance with reasonable standards of fair dealing”.
This rule does not, however, apply to a failure to read a contract. As a general proposition, a
party is held to what he signs. The signature authenticates the writing, and s/he cannot
repudiate that which s/he voluntarily approved. Generally, one who assents to a written offer
or contract is presumed to know its contents and cannot escape being bound by its terms
merely by contending that s/he did not read them; his/her assent is deemed to cover unknown
as well as known terms.
3.2. Misrepresentation
Another factor affecting the validity of consent given by a contracting party is
misrepresentation, which prevents assent from being knowingly given.
A misrepresentation may be:
(1) a misleading conduct or an assertion that is not in accord with the facts;
(2) an action intended, or known to be likely, to prevent another from learning a fact;
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(3) a person’s non-disclosure of a fact known to him/her, where he/she knows that disclosure
of the fact is necessary to prevent some previous assertion from being a misrepresentation
or from being fraudulent or material.
3.2.1 Types of misrepresentation
There are two distinct types of misrepresentation:
(1) fraudulent or material misrepresentation; and
(2) misrepresentation as an inducing cause.
Fraudulent or material misrepresentation: A misrepresentation is fraudulent if the maker
intends his assertion to induce a party to manifest his assent and the maker:
(1) knows or believes that the assertion is not in accord with the facts; or
(2) does not have the confidence that he states or implies as to the truth of the assertion; or
(3) Knows that he does not have the basis that he states or implies for making the assertion.
A misrepresentation is material if it would be likely to induce a reasonable person to manifest
his assent, or if the maker knows that it would be likely to induce the recipient to do so.
Misrepresentation as an inducing cause: A misrepresentation induces a party’s manifestation
of assent if it substantially contributes to his decision to manifest his assent. It is an
intentional misrepresentation of material fact by one party to the other, who consents to enter
into a contract in justifiable reliance on the misrepresentation.
3.2.2 Prevention from formation of a contract due to misrepresentation
If a misrepresentation as to the character, or essential terms, of a proposed contract induces
conduct that appears to be a manifestation of assent by one who neither knows nor has
reasonable opportunity to know of the character or essential terms of the proposed contract,
his conduct is not effective as a manifestation of assent.
3.2.3 Effect of misrepresentation
If a party’s manifestation of assent is induced by misrepresentation by the other party upon
which the recipient is justified in relying, the contract is voidable by the recipient.
3.3 Duress
A person should not be held to an agreement s/he has not entered voluntarily. Accordingly,
the law will not enforce any contract induced by duress, which in general is any wrongful or
unlawful act or threat that overcomes the free will of a party.
Ordinarily, the acts of threats constituting duress are themselves crimes or torts. But this is
not true in all cases. The acts need not be criminal or tortuous in order to be wrongful; they
merely need to be contrary to public policy or morally reprehensible. For example, if the
threat involves a breach of a contractual duty of good faith and fair dealing, it is improper.
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Moreover, it generally has been held that contracts induced by threats of criminal prosecution
are voidable, regardless of whether the coerced party had committed an unlawful act.
Similarly, threatening the criminal prosecution of a close relative is also duress. To be
distinguished from such threats of prosecution are threats that resort to ordinary civil
remedies to recover a debt due from another. It is not wrongful to threaten a civil suit against
an individual to recover a debt. What is prohibited is threatening to bring a civil suit when
bringing such a suit would be abuse of process.
3.3.1 Types of duress
Duress is two basic types, i.e. physical impulsion and improper threats.
Physical compulsion: The first type, physical duress, occurs when one party compels another
to manifest assent to a contract through actual physical force, such as pointing a gun at a
person or taking a person’s hand and compelling him to sign a written contract. “If conduct
that appears to be a manifestation of assent by a party who does not intend to engage in that
conduct is physically compelled by duress, the conduct is not effective as a manifestation of
assent”.
This type of duress, while extremely rare, renders the agreement void.
Improper threats: The second and more common type of duress involves the use of improper
threats or acts, including economic and social coercion, to compel a person to enter into a
contract. “If a party’s manifestation of assent is induced by an improper threat by the other
party that leaves the victim no reasonable alternative, the contract is voidable by the victim”.
Though the threat may be explicit or may be inferred from words or conduct, in either case it
must leave the victim with no reasonable alternative.
This type of duress makes the contract voidable at the option of the coerced party.
3.3.2 Assumption of strength and intelligence
The fact that the act or threat would not affect a person of average strength and intelligence is
not important if it places fear in the person actually affected and induces her to act against her
will. The test is subjective, and the question is this: Did the threat actually induce assent on
the part of the person claiming to be the victim of duress?
3.3.3 Effect of duress
If a party’s manifestation of assent is induced by duress, the contract is void in case of
physical compulsion, and voidable at the option of the coerced party in case of improper
threats.
3.4 Undue Influence
Undue influence is unfair persuasion of a party who is under the domination of the person
exercising the persuasion or who by virtue of the relation between them is justified in
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assuming that the person will not act in a manner inconsistent with the welfare of the party
being persuaded.
3.4.1 Cases of undue influence
Undue influence may be found in contracts between those in relationship of trust and
confidence that is likely to permit one party to take unfair advantage of the other, such as
relationships of guardian-ward, trustee-beneficiary, agent-principal, parent-child, attorney-
client, physician-patient, and clergy-parishioner. The weakness or dependence of the person
persuaded is a strong indicator of whether the persuasion may have been unfair.
3.4.2 Effect of undue influence
If a party’s manifestation of assent is induced by undue influence by the other party, the
contract is voidable by the victim.
3.5 Illegality
The law refuses to give full effect to contracts which are illegal (or affected by illegality)
because they are contrary either to law or public policy.
3.5.1 Unenforceability of contracts contrary to the law
One of the ways in which the offer may be terminated other than acceptance is the
‘subsequent illegality of the type of contract the offer proposes’. A contract is illegal if the
mere making of it amounts to a criminal offense, or if the contract has its object the
commission of a crime, or if one party to the other’s knowledge intended to use the subject
matter for an illegal purpose.
3.5.2 Unenforceability on grounds of public policy
Contracts are contrary to public policy if they have a clear tendency to bring about a state of
affairs which the law regards as harmful. A promise or other term of an agreement is
unenforceable on grounds of public policy if legislation provides that it is unenforceable or
the interest in its enforcement is clearly outweighed in the circumstances by a public policy
against the enforcement of such terms.
Weighing a public policy against enforcement of a term: In weighing a public policy against
enforcement of a term, account is taken of:
(1) the strength of that policy as manifested by legislation or judicial decisions;
(2) the seriousness of any misconduct involved and the extent to which it was deliberate; and
(3) the directness of the connection between that misconduct and the term.
Bases of public policies against enforcement: A public policy against the enforcement of
promises or other terms may be derived by the court from:
(1) legislation relevant to such a policy; or
(2) the need to protect some aspect of the public welfare such as a restraint of trade; an
impairment of family relations; and an interference with other protected interests;
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(3) failure to comply with a licensing, registration or similar requirement.
3.5.3 Exceptions to unenforceability
There are two categories of exceptions to unenforceability, i.e. excusable ignorance and
performance if intended use is improper.
Excusable ignorance: If a promisee is excusably ignorant of facts or of legislation of a minor
character, of which the promisor is not excusably ignorant and in the absence of which the
promise would be enforceable, the promisee has a claim for damages, but cannot recover
damages for anything that he has done after he learns of the facts or legislation.
Performance if intended use is improper: If the promisee has substantially performed,
enforcement of a promise is not precluded on grounds of public policy because of some
improper use that the promisor intends to make of what he obtains unless the promisee:
(1) acted for the purpose of furthering the improper use; or
(2) knew of the use and the use involves grave social harm.
SECTION 3. END OF CONTRACTUAL OBLIGATIONS
The subject of discharge of contract concerns the termination of contractual duties. Whatever
causes a binding promise to cease to be binding is a discharge of the contract. In general there
are various kinds of discharge of the contract: mainly we have performance by the parties,
agreement of the parties to terminate the contractual obligation, happening of a condition and
impossibility of performance.
1. Condition
A condition is an event whose happening or non-happening affects a duty of performance
under a contract. Some conditions must be satisfied before any duty to perform arises; others
terminate the duty to perform; still others either limit or modify the duty to perform. A
condition is inserted in a contract to protect and benefit the promisor. For example, A
promised to pay 100,000Rfws provided that such amount is realized from the sale of an
automobile, provided that the automobile is sold within sixty days. This condition is known
as a precedent condition. That is, a contract that is subject to a future event, there cannot be a
transfer of property because the future event has not yet occurred. In this case, the risk shall
always remain with the debtor of an obligation since transfer of property has not yet been
done.
It may also be a subsequent condition when a condition will terminate the contract.
Subsequent condition occurs, despite the fact that the contract will have been formed; the
occurrence of the subsequent condition renders the contracts without effect. In that case, the
risk shall remain with the debtor. The law says if under the terms of the contract the
occurrence of an event is to terminate an obligor’s duty of immediate performance or duty to
pay damages for breach, that duty is extinguished if the event occurs, unless the occurrence
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of the event is the result of a breach by the obligor or the occurrence does not subject the
obligor to a materially increased burden.
A fundamental difference between the breach or non-performance of a contractual promise
and the failure or non happening of condition is that, a breach of contract subjects the
promisor to liability. It may or may not, depending on its materiality, excuse the non-
breaching party’s performance of his duty under the contract. The happening or non-
happening of a condition, on the other hand, either prevents a party from acquiring a right or
deprives him of a right but subjects neither party to any liability.
Conditions may be classified by how they are imposed. They may be express or implied in
fact condition and implied in law condition:
Express conditions: An express condition is explicitly set forth in language. No particular
form of words is necessary to create an express condition, as long as the event to which the
performance of the promise is made subject is clearly expressed. An expressed condition is
always preceded by words such as “provided that”, “on condition that”, “if”, “as soon as”,
etc.
Implied in fact condition: implied in fact conditions are similar to express conditions in that
they must fully and literally occur and that they are understood by the parties to be part of the
agreement. They differ in that they are not stated in express language; rather they are
necessarily inferred from the terms of the contract, the nature the transaction, or the conduct
of the parties. Example: thus if A, for 100,000Rfws contracts to paint the B’s house any
colour B desires, it is necessarily implied in fact that B will inform A of the desired colour
before B begins to paint. The notification of choice of colour is an implied in fact condition,
as an operative event that must occur before A is subject to the duty of painting the house.
Implied in law condition or constructive condition: implied in law condition is imposed by
law to accomplish a just and fair result.
It differs from an express condition and implied in fact in two ways:
(1) it is not contained in the language of the contract or necessarily inferred from the contract
(2) it need only be substantially performed. For Example: A contracts to sell a certain tract of
land to B for 2,000,000 Rwf, but the contract is silent as to the time of delivery of the deed
and payment of the price. According to the principle, the contract implies that payment and
delivery of the deed are not independent of each other. The courts will treat the promises as
mutually dependent of the deed of A to B is a condition to the duty of B to pay the price.
Conversely, payment of the price by B to A is a condition on the duty of A to deliver the deed
to B.
Concurrent conditions: concurrent conditions occur when the mutual duties of performance
are to take place simultaneously. In this case, the performance under a contract is concurrent.
Condition precedent: A condition precedent is an event that must occur before performance is
due under a contract. In other words, immediate duty of one party to perform is subject to the
condition that some event must first occur.
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Condition subsequent: A condition subsequent is an event that terminates an existing duty.
For example, when goods are sold under terms of sale or return the buyer has the right to
return the goods to the seller within a stated period but is under an immediate duty to pay the
price unless the parties have agreed on the credit. The duty to pay the price is terminated by a
return of the goods, which operates as a subsequent condition.
2. Discharge by Performance
The performance signifies that the parties have dutifully carried out their respective
obligations, thus freeing themselves from further liability. The basic rule is that the parties
must perform their obligation in exact accordance with the agreed terms of the contract. The
contract must be performed at the time and place agreed upon. If no time is agreed then is
must be completed within a reasonable time and that will obviously depend upon the
circumstance of the particular case.
2.1 Date and time of performance
Contractual obligations must be performed in the time stipulated whether expressly or by
implication. When a specific date or a specified time is mentioned, then it is said that “time is
of the essence” of the contact and completion in accordance with the time or date becomes a
condition going to the very foundation of the contact. But sometimes when there has been an
extension the beneficiary of it may argue that even if time was of the essence, the creditor had
abandoned that condition by allowing an extension. In this case for example, B may order
furniture from S to be delivered on April 30th 2011. The consignment was not ready by that
date but B extended the date to May 10th. It was still not available and therefore B cancelled
the order. S Nevertheless proceeded to deliver on May 12th. B refused to accept delivery. In
this case the time will be considered as not being of the essence; the court may set for an
extra time (a respite or days of grace) and moratorium damages may be charged after a
notice. In a case such as this, the wording of the “agreement” to the extension is very
important.
The basis of “notice” is that time has not been made the essence of the contract is especially
important. The court will not allow one party suddenly to turn to the other and say “time has
gone, the contract is at an end”. When time has not been made the essence of the contract
and the circumstances are not such as to make it obvious that time is of the essence, it is clear
that, a party to the contract cannot avoid it on the ground of unreasonable delay by the other
party until a notice has been served after the unreasonable delay making time the essence.
When no time stipulated, performance must occur within reasonable time, determined by
reference to particular circumstances of the case.
2.2 Substantial Performance
In response to the harsh consequences that may result from entire contracts, the courts
developed the doctrine of substantial performance permitting recovery of contract price
where the plaintiff has substantially performed their obligations under a contract. If one party
has substantially completed his side of the bargain, leaving a minor omission or fault, the
court may accept such performance as discharging his obligations, subject to the innocent
party’s right to deduct a sum to cover the fault.
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This is illustrated by this example. X built a bungalow For Y the price to be paid by
installments. On completion Y withheld the balance due on the basis that there were some
structural defects. The Court may allow the builder’s claim that he had substantially
completed the contract. In determining whether a failure to render, or to offer, performance
is material, the following circumstances are significant:
(1) the extent to which the injured party will be deprived of the benefit which he reasonably
expected;
(2) the extent to which the injured party can be adequately compensated for the part of that
benefit of which he will be deprived;
(3) the extent to which the party failing to perform or to offer to perform will suffer
forfeiture;
(4) the likelihood that the party failing to perform or to offer to perform will cure his failure,
taking account of all the circumstances including any reasonable assurances;
(5) the extent to which the behaviour of the party failing to perform or to offer to perform
comports with standards of good faith and fair dealing.
However, a defendant may still maintain the right to claim damages for any loss suffered as a
result of the plaintiff’s failure to strictly adhere to their contractual obligations.
2.3 Divisible performance
Sometimes, it may be possible for the court to view the obligations between the two
contracting parties not as one entire contract but consisting of a number of individual and
separate obligations. It may be also the same when one person contracts several obligations in
one contract.
The law says that where the whole of one party’s performance can be rendered at one time, it
is due at one time, unless the language or the circumstances indicate the contrary. Where only
part of one party’s performance is due at one time, the other party’s performance can be so
apportioned that there is a comparable part that can also be rendered at that time, it is due at
that time, unless the language or the circumstances indicate the contrary.
If there is failure to perform all, it does not affect the obligations to pay for what has been
completed. For example, A transporter can agree to transport goods for so much per ton. If A
in fact carried less than the agreed amount, the court can hold that A was entitled to claim
for what he had carried, at the rate per ton subject to the other party’s right to sue for not
carrying the overall tonnage agreed upon.
2.4 Prevention of performance by one party
If the promisee prevents the promisor from performing his obligations under the contract, this
will excuse the promisor from performance and the promisee cannot thereafter rely on non-
performance as a basis for a contractual claim or as a defence to a claim brought by the
promisee. This is the principle of “exceptio non adimpleti contractus”.
It may be that one party is willing to release the other from completing the contract as
originally agreed. If such can be assumed from the circumstances of the case, then the party
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that has performed part of his obligations is entitled to claim on a quantum merit. The other
party must, however, be in a position freely to decide to accept partial performance. If it is
forced upon him by the behaviour of the other party then no claim will be allowed. In some
case, the innocent party can sue for damages for breach of claim on a quantum merit.
The example is the case Sumpter v. Hedges (1898 Queen’s Bench division – English contract
law). The plaintiff agreed to build on the defendant’s land premises for a lump sum of £565.
He completed work valued at £333 and then abandoned the contract. The buildings were
completed by the defendant. The plaintiff’s claim for the work done before abandoning the
contract was dismissed. The defendant had no real option but to finish the work. The plaintiff
was allowe d to claim for materials delivered as part of the original contract
As the court said: “He is not bound to keep unfinished a building which, in an incomplete
state would be a nuisance on his land”.
3. Discharge by agreement
After the formation of contract, but prior to complete performance, parties may wish to bring
their contractual rights and obligations to an end. Often this will be due to a change in
circumstances of one or both parties and may also be used as part of a dispute resolution
mechanism between parties.
In order to effectively terminate an existing contract, a new agreement must meet all criteria
of a binding contract. In such a situation each releases the other party from performing. In
that way each has given consideration to the other, namely the release, and the second
agreement discharges the first. If one party has performed, or partly performed his
obligations, in this case it is not sufficient for him merely to say that he releases the other
person. The reason being that the other person has given no consideration to be executed as
his contractual obligations, in other words the second agreement is not a contract at all.
One way round, the problem is to make the release under seal. A contract under seal or a deed
does not require consideration. There are certain formalities to be followed however for the
deed to be valid. A method of obtaining the discharge in this situation where one party has
performed or party performed his obligations is by accord and satisfaction, the party that has
not performed his original obligation now offers new consideration to be released from the
original contract. The other party can now accept the new consideration. The requirement of
consideration under this kind of contract causes certain difficulties. If the discharges are
under seal, only then is the consideration requirement avoided.
A related problem is that of waiver. In the present context this signifies that one party is
prepared to waiver or vary the terms of the original agreement. The problem, of course, is
what consideration the other party provides. The courts have been eager to enforce such
alterations in the contract because they reflect normal business or commercial tendencies. In
so doing however, the rules are not particularly clear or logical. Perhaps the most satisfactory
way of explaining the situation is to say that the courts apply an equitable principle. If X
agrees to waive certain obligations owed by Y and Y therefore alters his position accordingly,
then it would be inequitable to allow X immediately to revert to the original agreement. That
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X should be permitted to demand compliance at some future date is also a valid requirement
if the principles of equity are to be maintained.
The situation is illustrated by this decision in example. R agreed to build a car for D within
seven months, time being of the essence. The car was not ready but D agreed to extend the
date of delivery. After a further three months, D explained that if it was not completed within
four weeks he would cancel the order, this in fact happened. The court held that by allowing
an extension of time D had waived the original terms of the contract and therefore could not
go back on that. But he could reintroduce a reasonable date for completion and as R had
failed to comply with that date then D was entitled to repudiate the contract.
The agreement may also take the form of a novation. Novation recognizes the possibility that
one party to contract can release the other and substitute a third person who then undertakes
to perform the released person’s obligations. If an obligee accepts, in satisfaction of the
obligor’s duty, a performance offered by the obligor that differs from what is due, the duty is
discharged. Thus by agreement of the three parties a new contract replaces the original
contract. A novation is a contract that is itself accepted by the obligee in satisfaction of the
obligor’s existing duty. The substituted contract discharges the original duty and breach of
the substituted contract by the obligor does not give the obligee a right to enforce the original
duty.
Another type of novation can occur where the parties remain the same but a new contract is
substituted for the old. If an obligee accepts in satisfaction of the obligor’s duty a
performance offered by a third person, the duty is discharged, but an obligor who has not
previously assented to the performance for his benefit may in a reasonable time after learning
of it render the discharge inoperative from the beginning by disclaimer.
4. Frustration or impossibility
The doctrine of frustration deals with the allocation of risks and losses which occur as result
of an unanticipated change in circumstances occurring after parties have entered into a
contract. Frustration generally arises when a contracting party refuses to perform or has failed
to perform its obligations in whole or in part because performance of the contract has become
either physically impossible, illegal or is no longer commercially viable. The law says that
where, after a contract is made, a party’s performance is made impracticable without his fault
by the occurrence of an event the non-occurrence of which was a basic assumption, on which
the contract was made, his duty to render that performance is discharged, unless the language
or the circumstances indicate the contrary.
The principle is, once the parties had agreed to their various obligations and the contract was
valid, then nothing should be recognized as permitting one part to go back on his word. The
attitude, being strict, was that the parties should have provided for the happening of future
difficulties in the wording of the original agreement. If not then, it was his own fault for not
so providing and he must bear the consequences.
The case Paradine v. Jane ([1947] EWHC KB J5 is an English contract law case) illustrates this
situation. The defendant had leased a farm from the plaintiff. He was unable to pay the rent
because a German Prince had “ invaded the realm with a hostile army”, occupied the farm
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and thus prevented him from making any profits from which he would have paid the rent.
The court allowed the plaintiff’s action arguing that the defendant had agreed to pay and as
he had not provided against such eventualities in the agreement, then he should bear the loss.
It is not sufficient merely to show that conditions have changed so that one party is released.
That party must prove the existence of the frustration and its effects on the contract. Here the
court decided that the parties did not contract one the footing that the goods were to come
from Germany.
In the nineteenth century in England the courts began to adopt a more lenient approach to the
problem. There is a difference of opinion as to the reasoning behind what has been termed the
Doctrine of Frustration. The two commonly accepted approaches are either that there is an
implied term in every contract that should the performance become impossible then the
parties should be relieved from their obligations ,or that the event that occurs so
fundamentally alters the courts to release the parties from the bargain. Perhaps the most
useful course to adopt is to review the judgments in an effort to gauge when the courts will
invoke the doctrine.
4.1 Events that may frustrate
There are number of events that the courts have recognized which have rendered a contract
radically different from that which was contemplated. When determining whether the
doctrine of frustration operates in any particular case, consideration should be given to the
terms of the contract, the nature of the event that has occurred and the type of contract
involved; then an assessment may be made of whether or not the operation of the contract
following the event is radically different from that originally contemplated.
(1) Destruction of something essential
If the continuing existence of a thing or a person is assumed by both parties as the foundation
of the contract, the destruction of that thing or a person may invoke the doctrine of
frustration. In one of the earliest cases on frustration, in Taylor v. Caldwell, the defendants let
a certain music hall to the plaintiffs. Before the dates of the proposed concerts, the hall was
accidentally destroyed by fire. The court held that the contract was frustrated.
(2) Non- occurrence of an essential event
If the occurrence of an essential event is assumed by both parties as the basis of their contract
relationship, the non occurrence of that event may invoke the doctrine of frustration.
(3) Impossibility of performance
If, as a result of a supervising event, a contract becomes impossible to perform, either
physically or commercially, the doctrine of frustration may operate to discharge the contract.
An interesting question of precedent arises out of the East African Court of Appeal decision
in Victoria Industries v. Ramanbhai Bros (1961 E.A. 11). A Ugandan company had agreed to
ship maize via Lake Victoria to Mwanza. While part of the shipment was being loaded E.A
.Railways refused to accept the shipment. The court held that the railway’s behaviour
frustrated the contract as there was no alternative or feasible route.
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(4) Events causing delay or making performance more expensive
Events which merely delay performance or render it more expensive than contemplated will
not frustrate a contract. However, where delay or increased expenses is such that the contract
becomes one that is radically different from that contemplated by the parties the doctrine of
frustration may operate. However, sometimes as we said earlier, courts have to assess and
decide to consider or to disregard this theory. This illustrates clearly the situation. The facts
were that groundnuts were sold and were to be shipped from the Sudan to Germany.
Obviously, the route would have been through the Suez Canal. Owing to the invasion of
Egypt by Israel the Canal was blocked and the sellers argued that the contract was now
frustrated. This argument was not accepted. The court refused to imply a term that the voyage
must be via Suez. They considered that the contract could still be performed by going round
the Cape of Good Hope. The extra expense was not to be regarded as a frustrating event. In
this decision they seem to have forgotten that whenever the performance of the contract can
be more expensive the doctrine of frustration may operate.
(5) Changes in the law or government intervention
A subsequent change in the law may frustrate a contract, even if it does not render
performance of the contract illegal, provided it substantially affects the parties so that the
contract becomes different in nature from that contemplated by the parties. This may be, for
example, an interdiction from selling some kind of commodities in a given area or time.
If government rules, regulations or enactments prevent one party from fulfilling his
obligations the contract is frustrated. The article 95 (of the Law 45/2011 Governing
Contracts) says that if the performance of a duty is made impracticable by having to comply
with a new domestic or foreign governmental regulation or order, that regulation or order is
an event the non-occurrence of which was a basic assumption on which the contract was
made.
(6) Death in contracts involving personal performance (intuitu personae)
If the contract can be regarded as one that requires the personal service of one party and that
party dies or it becomes physically impossible or illegal for him to complete his obligations,
then it is regarded as a frustrating event. The law says that if the existence of a particular
person is necessary for the performance of a duty, his death or such incapacity as makes
performance impracticable is an event the non-occurrence of which was a basic assumption
on which the contract was made.
For instance, if a law graduate had signed a contract to work for a firm of advocates and the
Government then decided that all such graduates must spend one year at the Institute of Legal
Practice Development before starting their carrier, then the original contract of employment
would be frustrated because of the incapacity of that graduate.
4.2 Situation preventing the frustration
There cannot be a frustration when parties have contemplated a supervening event and made
provision for it in their contract. There is also no frustration when the event was caused by
one of the parties to the contract. If there is an event that has destroyed the basic on which the
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contract was made the party seeking to rely on frustration must prove affirmatively the
occurrence of that the event. Once done, it is then for the other party to show that the event
was due to the neglect or negligence of the party claiming frustration.
Two East African Appeal cases illustrate the workings of the rule. In Howard and Co.(Africa)
Ltd. V. Burton, the plaintiffs had agreed to supply the defendants with mid-day meals for their
labourers. The labourers however objected to the meals and the fact that deductions were
made from their wages to cover part of the cost. The defendants allowed the men to choose
and the result was that the number of meals required dropped from 2,500 to almost nil. The
plaintiff sued for breach of contract and the defendants pleaded frustration. The court allowed
the plaintiffs action, arguing that it was the defendants positive act of allowing their labourers
to choose that led to the decline in numbers and the subsequent failure on their part to take
delivery of the agreed quantities.
4.3 Consequences of frustration
The effect of frustration is to terminate a contract automatically. Consequently, there is no
need for either party to elect to terminate. Where a contract is terminated in future that the
accrued rights and obligations remain. Thus, money paid under a frustrated contract for
services to occur in the future could not be recovered, nor could recompense be obtained for
services rendered where payment only fell due after the frustrating event. However, if one
part has gained an advantage under the contract before the frustrating event, for instance by
way of part performance of the contractual obligations, then the court may order payment to
be made by the party benefited on the basis of the undue enrichment.
5. Discharge by breach
A breach of a contract may bring it to an end; in other words, may discharge, or terminate the
contract. When one party fails to perform his obligations or performs them in a way that does
not correspond with the agreement, the innocent party is entitled to a remedy. What form the
remedy will take depends on what type of breach the guilty party has committed. In all cases
the innocent party is entitled to claim damages, but only in two situations can the contract be
regarded as discharged and thus freeing him from performing his own obligations.
5.1 Fundamental breach
In deciding whether there has been a fundamental breach of the contract it is necessary to ask
whether it is a condition or a warranty that has been broken. We can examine if that condition
is a major term of the contract and breach of such a term allows discharge of the contract, and
that a warranty is a minor term that attracts only an award of damages. If the breach goes to
the root of the contract and affects its commercial viability, it is said to discharge the contract.
This can be illustrated by this Court decision in Mohamed Anwar v. Marjaria and Others.
The plaintiff had purchased eleven second hand tractors and spares from the respondents. He
signed a document that stated that the tractors were "seen and fully inspected on the
description … no other liability is taken whatsoever by the seller." When the plaintiff went to
collect the tractors two were missing and others had been stripped of their spare parts.
Nevertheless he removed the tractors on an undertaking that what was missing would be
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replaced. This was not done and the appellant stopped payment and when sued for the price
he alleged that he had repudiated the contract and, in addition, that the consideration had
totally failed.
Where there is a contract for the sale of goods to be delivered by stated instalments which are
to be separately paid for, and the seller makes defective deliveries in respect of one or more
instalments, or the buyer neglects or refuses to take delivery or pay for one or more
instalments, it is a question in each case depending on the terms of the contract, and the
circumstances of the case, whether the breach of contract is a repudiation of the whole
contract or whether it is a severable breach giving rise to a claim for compensation, but not to
a right to treat the whole contract as repudiated. The seller agreed to deliver milk daily for a
period of one year. After eight days the buyer refused to accept more deliveries on the
grounds that the milk had not passed through a refrigerator cooler. The buyer obtained the
backing of the Public Health Inspector that the milk was not fit for human consumption and
then sued for breach of contract.
5.2 Repudiation
A repudiatory breach is any form of conduct by a party that evinces an intention not to be
bound by the contract. Examples include expressly refusing to perform part or all of a
contract, or insisting that the other party perform the contract in a manner that it does not
require or sanction. It may also take the form of a continued failure to perform the contract.
This occurs when one party either expressly or impliedly intimates that he will not honour his
side of the bargain. Obviously this can happen at the moment performance is due or before
that time, when prior warning is given that the obligations will not be performed it is called
anticipatory breach. The law says “Repudiation shall be made by:
(1) a statement by the obligor to the obligee indicating that the obligor will commit a breach.
(2) a voluntary affirmative act which renders the obligor unable or apparently unable to
perform without such a breach”.
The repudiation may be anticipatory. The anticipatory breach occurs when the guilty party
repudiates the contract before the date on which they were due to perform their obligations
and the innocent party elects to discharge the contract as a result. Where reasonable grounds
arise to believe that the obligor will commit a breach by non-performance that would of itself
give the obligee a claim for damages for total breach, the obligee may demand adequate
assurance of due performance and may, if reasonable, suspend any performance for which he
has not already received the agreed ex- change until he receives such assurance.
Where an obligor repudiates a duty before he has committed a breach by non-performance
and before he has received all of the agreed exchange for it, his repudiation alone gives rise to
a claim for damages for total breach. Where performances are to be exchanged under an
exchange of promises, one party’s repudiation of a duty to render performance discharges the
other party’s remaining duties to render performance. In such a situation the innocent party
can sue at once, or wait until the time of performance is due and sue then. If he decides on the
last course of action, it is possible for the guilty party to “reform” and complete his part of the
contract. It may even be that something occurs to prevent the original innocent party from
completing his own obligations.
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Similarly the innocent party, if he decides not to act on the anticipatory breach but wait until
the date the performance was due, must show that he was able and willing to perform his part
of the agreement. If the innocent party decides to treat the other party’s behaviour as
anticipatory breach, he may be allowed to ask the court for a decree of specific performance
so that the court may compel the guilty party to perform. It is no defence to argue that the
cause of action does not arise until the final date for performance is due. The obligor’s failure
to provide within a reasonable time such assurance of due performance may be treated as a
repudiation.
5.3. Effects of breach
As was said earlier, the effects of breach of contract vary depending on the seriousness of the
breach and also on how the innocent party decides to react towards the breach. The remedies
available are discussed in the next Chapter. A breach by non-performance gives rise to a
claim for damages for total breach only if it discharges the injured party’s remaining duties to
render such performance.
6. Rescission
Parties to a contract can file an action requesting for its nullity or rescission if there was error,
fraud or violence. An agreement of rescission is an agreement under which each party agrees
to discharge all of the other party’s remaining duties of performance under an existing
contract. An agreement of rescission discharges all remaining duties of performance of both
parties. It is a question of interpretation whether the parties also agree to make restitution
with respect to performance that has been rendered.
Rescission of the contract extinguishes not only the rights of the parties therein but also those
of their successors in title. The rule is “resoluto jure dantis resolvitur jus accipientis”, but to
a certain extent third parties are protected. When a lease has been granted by an owner whose
right of ownership is afterwards rescinded in the case of the sale of an immovable object, the
seller cannot get the sale rescinded against an onerous purchaser whose right is transcribed
unless the seller has preserved his privilege by transcribing it.
In principle the rescission works ‘ex tunc’, i.e. it returns matters to the state of the moment of
the conclusion of the contract or, sometimes, of a later date in the case of non-retrospective
effect the rescission works ‘ex tunc’, i.e. the day of the issue of the writ, or, sometimes, the
day of the judgment or even the day of the enforcement of the judgment. Ex tunc is the Latin
for “from the outset”
The impossibility of restitution in successive contracts, is due to the nature of the property
(e.g. the enjoyment of the premises) or the use which was made of it (e.g. a pipe-line delivers
oil over several months, but the oil is stocked in huge reservoirs; or fertilizer is spread in the
fields). The criterion proposed by Marcel Fontaine in order to define the exceptions to the
principle of the retrospective effect of the rescission is the divisibility of the contract. The
rescission has a retrospective effect to the moment of the conclusion of the contract each time
that the non-performance affects the whole of the contract; the rescission will be limited up
until the date of the serious no-performance which does not overturn the reciprocal utility of
what was performed earlier to the common satisfaction of both parties. If this criterion is
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accepted, the starting point of the non-retrospective rescission will not be the same in all
cases. It is the date on which a party judged that the contract ceased to fulfil its function.
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STUDY UNIT 8. SALE OF GOODS
SECTION 1. Definition
A contract of sale of goods is a contract whereby the seller transfers or agrees to transfer the
property in goods to the buyer for a price in the form of money.
A contract of sale may be absolute or conditional. In an absolute sale the property in the
goods passes from the seller to the buyer immediately and nothing remains to be done by the
seller. Sale at a counter in the shop is an absolute sale. In a conditional contract of sale the
property in the goods does not pass to the buyer absolutely until a certain condition is
fulfilled.
The term contract of sale comprises two things:
• Sale, and
• Agreement to sell
Where the seller transfers the property in the goods immediately to the buyer there is a sale.
But where the transfer of the property in the goods is to take place at a future time or subject
to some condition(s) thereafter to be fulfilled, the contract is called an agreement for sale.
An agreement for sale becomes a sale when the time elapses or the conditions are fulfilled
subject to which the property in the goods is to be transferred. Every sale originates in an
agreement to sell. It is an agreement to sell which gives birth to a sale. On a sale, the
agreement of sale is completely exhausted and ceases to exist.
SECTION 2. Essentials of contract of sale
• A contract
• Between two parties
• To transfer or agree to transfer the property/title in goods
• For a price, that is money consideration.
2.1. A contract
The word contract means an agreement enforceable at law. It presumes free consent on the
part of the parties who should be competent to contract. A compulsory transfer of goods
under any Nationalization Act is not a sale. The agreement must be made for a lawful
consideration and with a lawful object. In other words all the essential elements of a valid
contract must also be present in a contract of sale.
2.2. Two Parties
To constitute a contract of sale, there must be a transfer or agreement to transfer the property
in the goods by the seller to the buyer. It means that there must be two persons one the seller
and the other the buyer. The buyer and the seller must be two different persons, for a man
cannot purchase his own goods. The parties must be competent to contract.
Example: A partnership firm was dissolved and the surplus assets including some goods
were divided among the partners. The Tax Officer wanted to tax this as a sale.
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The court held that this was not a sale as partners were themselves joint owners of the goods
and they could not therefore be both sellers and buyers. Moreover there was no money
consideration.
There are certain exceptions to the rule that the same person cannot be a purchaser and a
seller. These are:
• Where person’s goods are sold in execution of a decree, he may himself buy
them.
• A part owner can sell his share to the other part owner so as to make the other
part owner the sole owner of the goods.
• Where a Pawnee sells the goods pledged with him on non-payment of bill
money, the pawnor may himself buy such goods
2.3.Transfer of property
In a contract of sale there should be a transfer or an agreement to transfer the absolute or
general property in the goods sold. It contemplates the transfer of ownership in the goods.
Though passing the title in the goods is an essential ingredient of sale, physical delivery of
goods is not essential. The sale of goods contemplates the transfer of the general property or
title in the goods from the seller to the buyer.
2.4. Goods
The subject matter of the contract of sale of goods must be the goods, the property in which
is to be transferred from the seller to the buyer. Goods of any kind except immovable goods
may be transferred. It does not include money and other actionable claims. The seller must be
the owner of the goods the ownership of which is sought to be transferred.
2.5. Price
To constitute a valid contract of sale, consideration for transfer must be money paid or
promised. Where there is no money consideration the transaction is not a contract of sale as
for instance goods given in exchange for goods as remuneration for work or labour. However,
an existing debt due from the seller to the buyer is sufficient. Further there is nothing to
prevent the consideration from being partly in money and partly in goods or some other
articles of value. For example when an old car is returned to the dealer for a new one and the
difference is paid in cash that would also be a sale.
It may be noted no particular form is necessary to constitute a contract of sale. A contract of
sale may be made in writing or by words of mouth or may be implied from the conduct of the
parties.
SECTION 3. Distinction between a sale and an agreement for sale
The distinction between sale and an agreement for sale is very necessary to determine the
rights and liabilities of the parties to a contract. The main points of distinction are:
1. Transfer of property
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In a sale the property in the goods passes from the seller to the buyer at the time the contract
is made. But in an agreement for sale the transfer of property takes place at some future time
or until some condition is fulfilled.
In other words in a sale the buyer becomes the owner of the goods immediately at the time of
making the contract. In an agreement for sale the seller continues to be the owner until the
agreement for sale becomes a sale.
2. Nature of the contract
An agreement to sell as an executory contract, is a contract pure and simple and no property
passes, whereas a sale is an executed contract plus a conveyance.
3. Risk of loss
In a sale the buyer immediately becomes the owner of the goods and the risk as a rule passes
to the buyer; under an agreement to sell, the seller remains the owner and the risk is with him.
Thus under a sale if the goods are destroyed the loss falls to the buyer even though the goods
are in the possession of the seller. But under an agreement to sell, the loss will fall on the
seller even though the goods are in the possession of the buyer.
4. Consequences of the breach
On breach of an agreement to sell by the seller, the buyer has only a personal remedy against
the seller. But if after a sale, the buyer breaks the contract (e.g. resells the goods) the buyer
may sue him for delivery of the goods or damages.
In an agreement to sell, if the buyer fails to accept the goods the seller may sue for damages
only and not for the price. On a sale if the buyer does not pay the price, the seller may sue
him for the price.
5. Insolvency of the buyer
In a sale if the buyer is adjudged an insolvent, the seller in absence of lien over the goods is
bound to deliver the goods to the official receiver or any government appointee for that
purpose. The seller will however, be entitled to a rateable dividend for the price of the goods.
In an agreement to sell, when the buyer becomes insolvent before he pays for the goods, the
seller need not part with the goods.
6. Insolvency of the seller
In a sale if the seller becomes insolvent the buyer is entitled to recover the goods from the
official receiver or any government appointee for that purpose as the property of the goods is
with the buyer. In an agreement to sell, if the buyer has already paid the price and the seller
becomes insolvent, the buyer can claim only a rateable dividend and not the goods.
7. General and particular property
An agreement to sell creates a right “in personam” while a sale creates a right “in rem”. In
case of an agreement to sell the buyer and the seller get remedy against each other in case of
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a breach of an agreement. The agreement for sale creates a right with which only the
contracting parties are concerned and not the whole world, whereas in case of a sale the buyer
gets an absolute right of ownership and this right of the buyer is recognized by the entire
world.
8. Right of resale
In an agreement for sale, the property in the goods remains with the seller and he can dispose
of the goods as he likes, although he may thereby commit a breach of his contract. In a sale,
the property is with the buyer and as such the seller cannot resell the goods. If he does so, the
buyer can recover the goods sometimes even from third parties.
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STUDY UNIT 9. AGENCY
Modern business is becoming more complex day by day. As such it is not possible for an
individual to carry out business singly. He must necessarily depend on others for the efficient
running of the business.
He must delegate some of the powers to another. The person who acts on behalf of another or
who has been delegated the authority is called an agent. The person who authorizes another to
act is called the principal. The contract which creates the relationship of principal and agent is
called ‘agency”. The law of agency is based on the principle, “what a person does by another,
he does by himself”.
SECTION 1. Agency: Definition and key features
Agency is a relationship between two parties created by agreement express or implied. The
relationship of agency arises wherever one person called the agent has authority to act on
behalf of another called the principal. The concept of agency emphasizes that one person
brings two other persons into a legal relationship. It is this power of creation of a relationship
between the principal and the third parties that the essential importance of agency lays. It may
be noted that an agent is not a mere connecting link between the principal and the third
parties. He has the power to make the principal answerable to the third parties for his
conduct.
The relationship of agency is based upon a contract. The contract may be either express or
implied. The essentials of agency are as follows:
1. There should be the appointment by the principal of an agent
2. The principal should confer authority on the agent to act for him
3. The authority conferred must be such as will make the principle answerable to third
parties.
4. The object of the appointment must be to establish relationship between principal and
third parties.
5. The relationship of agency, being based on confidence between the principal and the
agent, deems that no consideration is necessary.
SECTION 2. Agent
2.1. Definition
Every person who acts for another is not an agent. A person does not become an agent on
behalf of another merely because he gives him advice. A person can be an agent when he is
authorized to act for the principal. To be an agent “the person employed must be authorized
to do any act for another or to represent in dealings with third parties.” The person for whom
such act is done or who is so represented is called the principal.
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2.2. Who may be an agent?
Any person can be an agent. In other words even a minor can be employed as agent and the
principal shall be bound by the acts of such an agent. But no person who is not of the age of
majority and of sound mind can become an agent so as to be responsible to his principal.
Thus, if an agent is to be held reliable to the principal he must be a major and of sound mind.
2.2. Who may be a principal?
A person who is a major and who is of sound mind can employ another person as an agent. A
person who is of the age of majority and is of sound mind can become a principal. Thus a
minor cannot become a principal
2.3. Types of agents
The term agent applies to anyone who by authority performs an act of another, and includes a
great many classes of persons to who distinctive names are given. There may be various
types. The important one are classified as under:
1. Express or implied agents
An express agent is one who is appointed verbally or by writing. An implied agent is one
whose appointment is to be inferred from the conduct of the parties.
2. General, special or universal agents
A general agent is one who is employed to transact generally all the business of the principal
in regard to which he is employed. A special agent has only authority to do some particular
act or represent his principal in some particular transaction. A universal agent is one who is
authorized to transact all the business of his principal of whatever kind and to do all the acts
which the principal can lawfully do and can delegate.
3 Agent or Sub –Agent
An agent derives his authority directly from the principal .A sub–agent derives his authority
from the agent who has been appointed to do the act.
One broad classification of agents is Mercantile or commercial agents and non-Mercantile or
non-Commercial agents.
Mercantile Agents: the following are some of the important types of mercantile agents-:
1. Factor; A factor is a mercantile agent to whom possession of goods is given for sale.
Generally speaking he is a person to whom the goods are consigned for sale by a
merchant residing abroad, or at a distance from the point of sale. He usually sells the
goods in his own name. He cannot barter or pledge the goods. He has a general lien
for the balance of account as between himself and the principal.
2. Auctioneer: An auctioneer is an agent who is appointed to sell goods at a public
auction for remuneration. He may or may not be entrusted with the possession or
control of the goods which he sells. He may be agent both for the seller and the buyer.
The auctioneer can sue for the purchase price in his own name.
3. Broker: A broker is a mercantile agent who is employed to make contracts for the
purchase and sale of goods for a commission called brokerage. A broker unlike a
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factor is not entrusted with the possession of the goods. Even the documents of title
are not made over to him. His business is to find purchasers for those who wish to
sell, and sellers for those who wish to buy. His duty is to bring parties together to
bargain or to bargain for them in various matters. He makes contracts in the name of
his principal and not in his own name. He is a mere negotiator or, in a sense, a
middleman.
4. Commission Agent: A commission agent is a mercantile agent who in consideration
for a certain commission engages to purchase or sell goods for his principal. He sells
and buys goods in the market on the best terms and in his own name. His only interest
in the transaction is his commission. All profits and losses accrue to the principal
5. Del credere Agent: A Del credere agent is an agent who in consideration of an extra
remuneration guarantees to his principal the performance of the contract by the other
party. This Del credere commission is a higher reward than is usually given in the
form of commission. He occupies the position of the guarantor as well as of an agent.
But his liability is secondary and arises only on the insolvency or failure of the other
party. A Del credere agent is appointed generally when the principal deals with
persons about whom he knows nothing.
6. Banker: The relationship between a banker and the customer is either that of debtor
and creditor or of an agent and principal. When the banker advances money to his
customer as a loan, banker is the creditor and the customer is the debtor. But the
banker acts as an agent of his customer when he buys or sells securities, collects
cheques, dividends , bills etc. on behalf of his customer
1. Non-Mercantile agents
Non–Mercantile agents include counsel, solicitor, guardian, promoter, wife, receiver,
insurance agent etc.
SECTION 3. Creation of agency
An agency may arise in different ways. It need not be created expressly and may be inferred
from the circumstances and conduct of the parties. Any agency may be constituted in the
following ways.
1. By express agreement,
2. By implication in law i.e., from the conduct of the parties or from the necessity of the
case; and
3. By ratification
3.1. Agency by express agreement
A contract of agency may be created by an express agreement. When a principal appoints an
agent either by words spoken or written to represent and act for him, an express agency is
created. No particular form or set of words is required for appointing an agent. When a
person gives the power of attorney to another person, an express agency is created.
3.2. Agency by implication
The relationship of principal and agent need not be expressly constituted and can arise by
implication of law as well. Authority to act as an agent can be inferred from the nature of the
business, the circumstances of the case, the conduct of the principal or the course of dealings
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between the parties. Thus if a person realizes rent and gives it to the landlord, he impliedly
acts for the landlord as an agent.
Example: A owns a shop at Remera, living himself in Kabuga and visiting the shop
occasionally. The shop is managed by B and he is in the habit of ordering goods from C in
A’s name, for the purpose of the shop and of paying for them out of A’s funds with A’s
knowledge. B has an implied authority from A to order goods from C in the name of A for
the purpose of the shop.
Implied agency includes-:
(a) Agency by estoppel;
(b) Agency by holding out;
(c) Agency by necessity.
(a) Agency by estoppel: In many case an agency may be implied from the conduct of the
parties though no express authority has been given. Thus where the principal
knowingly permits to act in a certain business in his name or on his behalf, such a
principal is estopped from denying the authority of the supposed agent to bind him.
(b) Agency by holding out: Where a person permits the other by a long course of conduct
to pledge his credit for certain purposes, he is bound by the act of such person for
pledging his credit for similar purposes, though in some cases without the previous
permission of his master. This is a case of agency by “holding out “. Similarly where
a husband holds out his wife has having his authority by words or conduct and a third
party advances to the wife on the faith of such conduct; the husband is liable for the
debts.
(c) Agency by necessity: Sometimes extraordinary circumstances require that a person
who is not a really agent should act as an agent of another. In such a case although
there might not have been an express or implied authority to do an act, the law implies
such an authority in favour of that person in account the necessity that has arisen.
However before an agency of necessity can be inferred, the following conditions
should be fulfilled-:
- There should be real and definite necessity for the creation of the agency.
- It should be impossible to obtain the principal’s instructions.
- The person acting as an agent should act bona fide and in the interest of the parties
concerned.
3.3. Agency by ratification
All acts of an agent done in the discharge of his duties and within the scope of his
authority is binding upon the principal. Acts performed by an agent beyond the scope of
his authority are not binding upon the principal. However the principal may in such case
either adopt or reject the act of the agent. In case the principal adopts the acts of the agent
done without his authority, he is said to have ratified that act. On ratification the act of the
agent becomes the act of the principal and he becomes bound by the same whether be to
his loss or advantage.
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STUDY UNIT 10. INSURANCE
SECTION 1. DEFINITION OF THE CONTRACT OF INSURANCE AND INSURER
A contract of insurance is a contract whereby a person called insurer undertakes, against
payment of a premium or more, to provide a person named insured or beneficiary a cash
benefit in case of realization of a determined risk3.
Another definition is not directly oriented to the contract of insurance but to “Insurance
Business” which is a business of undertaking liability of loss, damage, compensation, disease,
health as well as reinsurance business in accordance with laws and agreements4.
Scholars say that the contract of insurance is any contract whereby one party assumes that
risk of an uncertain event, which is not within his control, happening at a future time, in
which event the other party has an interest, and under which contract the first party is bound
to pay money or provide its equivalent if the uncertain event occurs5.
The last definition given by the doctrine is more complete because it is précising that the risk
could be uncertain, not within the control of the insured and happening at a future time.
Now let us talk about the definition of the insurer as an active moral person involved into
financial sector as a non bank financial institution.
An insurer is a party that accepts the risk of loss in return for a premium (payment of money)
and agrees to compensate the insured against a specified loss6.
SECTION 2. COMMON TYPES INSURANCE AND THEIR ROLE
Insurance can be divided into seven major categories. These categories are: life insurance7,
fire insurance, casualty insurance, social insurance, marine insurance, inland marine
insurance, and fidelity and surety bonding insurance8.
In Rwanda there are five following private insurers: SONARWA (Société Nouvelle
d’Assurances du Rwanda), SORAS (Société Rwandaise d’Assurances), CORAR (Compagnie
de Réassurance et d'Assurances Rwandaise), COGEAR (Compagnie Générale d'assurances
et Réassurances Au Rwanda) and Phoenix of Rwanda Assurance Company S.A.
Insurance has been referred to as the handmaiden of industry. Leave alone reducing loss,
damage and stress in community to more agreeable levels, the insurance companies of
3 Art. 1al 1 of the order n0 20/75 on insurance in J.O. of 1975
4 Art. 2 (1) 0f Law nº52/2008 of 10/09/2008 governing to the organization of insurance business in O.G n°
special of 31 March 2009
5 JOHN BIRDS; Birds’ modern insurance law, ed. Sweet & Maxwell, London, 2007, p. 9
6 GORDON W. BROWN (et al); Business Law with UCC Applications, 11th ed. McGraw-Hill, p.939
7 Some say Assurance – refers to a Certain Event i.e. death, and only the time is uncertain. Life Insurance is for
a specified time period and after that time, the policy expires.
8 NORBERT J. MIETUS (et al); Applied Business Law, 12th ed. South- Western Publishing CO, 1982, p. 442
Page 98
Rwanda have played an important role in mobilization of savings and investments in the
social sector in the past 25 years.
The services offered by Insurance companies in Rwanda are evidencing remarkable growth in
the range and nature of insurances provided by this dynamic industry.
The focus has been to stick to the traditional roles of insurance in community, which are to
spread risk, and if the risk materializes, to spread the resulting loss but at the same time
making diverse the range of products provided. Incidental to this task, but increasingly a
significant subordinate task of insurance in itself, has been the management of risk and the
prevention of loss.
The Insurance companies offer various types of services ranging from life, retirement fund,
medical fund, automobile, to property coverage9.
The cost of retirement was so far covered by the Rwandan social security fund which is a
public institution; but the draft law governing the organization of pension scheme foresees a
voluntary pension scheme which will be covered by any insurer.
By providing contingent promises insurers offer a risk management tool enabling those who
are least able to bear the risk to transfer, at a cost, those risks to those who are able to manage
them. With the vulnerabilities to natural disasters in this region, people are exposed to their
risks and consequent income fluctuations. Taking insurance cover can offset this.
As custodians of people’s savings, banks are risk averse and not suited to take on general
insurance risks. Life insurance companies mobilize savings from the household sector and
channel them to the corporate and public sectors. The key difference between banks and life
insurers is that the maturity of liabilities in banks is generally shorter than those of life
insurance companies. This enables life insurers to play a large role in long-term financing. At
the same time, life insurers’ portfolios are typically more liquid than those of banks, making
them less prone to liquidity crises.
For insurers, the risks that impact on their ability to pay can be classified into three main
categories – technical risks, asset risks and other. Technical risks arise from the very nature
of the insurance business hinging on the determination of liabilities. Insurance liabilities are
estimated using actuarial or statistical techniques, based on probability using past experience
and making assumptions about the future. If these calculations are incorrect, liabilities would
be understated or premiums would be undercharged, both would distort the insurer’s true
financial position and lead to liquidity or even solvency problems. Under-pricing, unforeseen
or inadequately understood events and insufficient reinsurance are all examples of technical
risks. On the asset side, insurers face market risk, credit risk and to a lesser degree, liquidity
risk. Other risks include legal and operational risks.
On top of all the risks, the heterogeneous nature of the insurance industry – with life and non-
life insurers as well as reinsurers – and the wide range of risks even for insurers in the same
country or market, all add to the difficulty in insurance supervision.
9 Insurance in Rwanda, see http://www.guideafrica.com/rwanda/insurance-rwanda/insurance-in-rwanda.html
Page 99
SECTION 3. CATEGORIES OF INSURANCE BUSINESS
Insurance business is divided into two categories; long term insurance business and short
term insurance business10.
Categories of insurance business provided by the Law governing the organization of
insurance business comprise classes as specified under subparagraphs 2 and 3 of the article 2
of the regulation n°05/2009 of 29/07/2009 on licensing requirements and other requirements
for carrying out insurance business.
According to this regulation Long-term insurance business refers to insurance business of all
or any of the following classes, namely:
a) ordinary life insurance business,
b) industrial insurance business,
c) treasury bonds investment business,
d) any business carried on by the insurer as incidental to any class of business
abovementioned.
Short-term insurance business refers to insurance business of any class not being long-term
insurance business. This is the non exhaustive list:
a) Motor insurance business comprising commercial Lines and personal lines
b) Property insurance business comprising fire and natural forces, aviation – aircraft, and
marine – ships
c) Miscellaneous comprising damage to property, expropriation and confiscation of
property, insurance contracts primarily designed to cover the interests of any natural
person against loss or damage to immovable and movable property as well as
specified property as a result of fire, explosion, storm, water and certain natural
forces, (excluding the risks of riot, strike, war and nuclear energy, accidental incident
or any other unforeseeable event), transportation insurance business, accident and
health insurance, liability insurance, engineering insurance business, guarantee
insurance business…
10 Art. 4 0f Law nº52/2008 of 10/09/2008 governing to organization of insurance business in O.G n° special of
31 March 2009
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STUDY UNIT 11. NEGOTIABLE INSTRUMENTS
SECTION 1: Definition and distinct characteristics of negotiable instruments
1. Definition
The negotiable instrument refers to a promissory note, bill of exchange or cheque payable
either to order or bearer. These three instruments are usually characterised as negotiable
instruments.
Some writers have attempted to define a negotiable instrument as: “ the property in which it
is acquired by anyone who takes it bona fide, and for value” notwithstanding any defect of
title in the person from whom he took it. Another useful definition is given by Thomas who
states that “ an instrument is negotiable when it is, by a legally recognised custom of trade or
by law, transferable by delivery or by endorsement and delivery, without notice to the party
liable, in such a way that a) the holder of it for the time being may sue upon it in his own
name, and b) the property in it passes to a bona fide transferee for value free from any defect
in the title of the person from whom he obtained it”.
These definitions clearly reveal the true nature of negotiable instruments. A negotiable
instrument is a transferable document either by the application of the law or by the custom of
the trade concerned. The special feature of such an instrument is the privilege it confers on
the person who receives it bona fide and for value. To possess good title thereto, even if the
transferor had no title or had effective title to the instrument.
Negotiable instruments are a practical creation by merchants to facilitate transfer of funds and
payment. They serve as a medium of payment more convenient than the traditional silver and
gold coins. Today, negotiable instruments have become more sophisticated and modernized.
The legal relationship created by negotiable instruments is similar to those of debtor and
creditor. The issuer is a debtor, i.e. agrees to pay the particular sum of money, while the
recipient is in turn a creditor, i.e. the negotiable instrument is a proof of his entitlement,
against the issuer, of the particular sum specified in the negotiable instrument.
The creditor: holder of the bill: can negotiate the bill, i.e. exchange the value specified in the
bill as a consideration for the conclusion of a contract, e.g. use of the bill to pay for a business
transaction. The new holder of the bill acquires the same rights against the original issuer not
so much different from the first holder. Such transactions have led the legislature to
articulate detailed legal regimes to deal with the type of negotiable instruments as well as the
rights and duties of their issuers, holders and guarantors.
2. Different kinds of negotiable instruments
A. BILL OF EXCHANGE
A bill of exchange is an instrument in writing containing an unconditional order, signed by
the maker, directing a certain person to pay a certain sum of money only to, or to the order of,
a certain person or, to the bearer of the instrument.
The essential requisites of bill of the exchange are:
1-It must be in writing;
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2-It must be containing an “order to pay”;
3- The order to pay must be unconditional. The order is not conditional by the reason of the
time for payment of the amount or any instalment thereof being expressed to be on the lapse
of certain period after the occurrence of a specified event which, according to the ordinary
expectation of mankind, is certain to happen, although the time of its happening may be
uncertain.
4- It must be signed by the maker
5-The drawee must be certain. A person is certain although he is miss-pelt or designated by
description only.
6-The sum payable must be certain. The sum payable may be certain although it includes
future interest or is not payable at an indicated rate of exchange, or is according to the course
of exchange, and although the instrument provides that, on default of payment of an
instrument, the balance unpaid shall become due.
7-The order must be to pay money only
8-the payee must be certain
The following is an example of a bill of exchange:
Kigali 1-10-05
30.66.200
Rs. 10.500
On demand pay to M/s Mugenzi Enterprises Kigali, or
order a sum of Rwandan Francs Ten Thousand Five
Hundreds only for Value received.
To Sd/-
Ngirimana
M/s Gakire.
Mount Road,
Kigali.
B. PROMISSORY NOTE
A promissory note is an instrument in writing (not being a bank note or a currency note)
containing an unconditional undertaking, signed by the maker, to pay a certain sum of money
only to, or to the order of, a certain person or to the bearer of the instrument.
The essential requisites of a promissory note are:
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1-It must be in writing
2-It must contain an undertaking to pay.
3-The undertaking to pay must be unconditional
4-It must be signed by the maker.
5-it must undertake to pay a certain sum
6-The undertaking must be to pay in money only.
7-the payee must be certain.
These are promissory notes:
1-I promise to pay B or order Rwf.500.
2-I acknowledge myself to be indebted to B in Rwf. 1,000 to be paid on demand for value
received.
Specimen of promissory note:
Kigali 6-07-2009
RFrs.6.000
On demand I promise to pay Mr. Mugenzi or order a sum of
Rwandan Francs Six Thousands only.
Ngirimana
Stamp
Sd/-
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C. A CHEQUE
A cheque is a bill of exchange drawn on a specified banker and expressed to be payable
otherwise than on demand.
Specimen of cheque
Bank de Kigali
No. H/SB 362507
Date 25th march 2009
Kigali
RFs.500/-
Pay to Mr. Majaliwa ………………or bearer Rwandan Francs
Five Hundred only……………….
L.F.
Account Nº.5628 Sd/-
a) Distinguishing features of cheque, bill of exchange and promissory note
Based on the above statutory definitions, the followings are the distinguishing features of the
three negotiable instruments indicating the similarities and contrasts between them:
i) Instruments in writing
The law requires that a cheque, bill of exchange or promissory note must be an instrument in
writing. It does not specify any particular material on which it is to be written. Though law
does not prohibit a negotiable instrument written with a pencil, in practice the bankers do not
accept such instruments because of risk involved. Alterations therein may be easily made
which cannot be detected.
ii) Unconditional order/promise
A cheque and a bill of exchange contain order to the drawee whereas a promissory note
contains a promise by the maker to his creditor. Thus the main difference between a cheque
and a bill on the one hand and a promissory note on the other is that the cheque and the bill
contain an order from the creditor to the debtor to pay a sum of money while the promissory
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note contains an undertaking or promise made by the debtor to his creditor to pay the sum
specified therein.
However, there is one common feature of a promissory note, cheque and a bill. The promise
in the former and the order in the latter must be an unconditional one, i.e., the payment
should not be made dependent upon the happening or occurrence of a particular event or on
the fulfilment of any requirement. But if the time for payment of the amount (or any of its
instalments) is expressed to be on the lapse of a certain period after the occurrence of a
specified even, the promise or order to pay is not deemed ‘conditional’ provided the event is
certain to happen according to ordinary expectation of mankind, although the time of its
happening may be uncertain. Thus, a distinction may be made between an event, which is
bound to take place according to human expectation, and the one, which may or may not at
all take place. For example, the death of a particular person is an event which shall definitely
take place; its timing may be uncertain. But the marriage of a person, or his departure to or
return from a foreign country are events, which are uncertain to take place. The words in
cheque or the bill must be in the nature of an order rather than a request, though it is not
necessary that the word ‘order’ is specifically mentioned therein. Words of courtesy, if any,
such as ‘please’ do not make the instrument invalid on this ground. The words in the
promissory note should also amount to an unconditional promise to pay the specified amount;
otherwise it will not be treated as a promissory note.
iii) The drawer of a cheque or bill
The main difference between a cheque and a bill is that the former is always drawn on and is
payable by a banker specified therein, whereas a bill of exchange may be drawn on any
person, firm or company. Thus only a customer of a bank having a current or a savings bank
account is entitled to draw a cheque on his bank, i.e., the particular branch of a bank where he
has opened his bank account. The name and address of the drawer bank are specifically
printed on the cheque form. A seller generally draws a bill of exchange on his customer, or
by a creditor on his debtor. Sometimes accommodation bills are also drawn to help a familiar
party.
iv) The amount of the instrument must be certain
The order of the drawer of a cheque or a bill and the promise by the writer of a promissory
note must be to pay a certain sum of money to be paid must be certain and specified both in
words and figures. In most cases its stated that the sum must be certain although-
It includes future interest, or
It is payable at an indicated rate of exchange, or
It is according to the course of exchange,
The instrument provides that on default of payment of an instalment, the balance unpaid shall
become due.
The amount may be mentioned in a foreign currency as well, provided the rate of conversion
of the domestic currency into foreign currency is stated by the drawer or is left to be decided
according to the market conditions.
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v) The instalment must be payable either ‘to order’ or ‘to bearer’
1º Payable to order
A promissory note, bill of exchange or cheque is payable to order if it is expressed to be so
payable or if it is expressed to be payable to a particular person and does not contain words
which prohibit its transfer or which indicate an intention that it shall not be transferable. For
example, if a cheque is drawn as “ pay to be transferable”. For example, if a cheque is drawn
to Madam Lal” its payment may be made to Madam Lal or any other person as per his order.
The cheque can be endorsed, even if it does not contain the words “ or order”. But if the
cheque is drawn as “ pay to Madam Lal only” shows the intention of the drawer to restrict its
further transfer. Such a cheque shall be payable to Madam Lal only.
If a negotiable instrument, either originally or by endorsement, is expressed to be payable to
the order of a specified person, and not to him or his order, it is nevertheless payable to him
or his order at his option. For example, if a bill of exchange is expressed as ‘ pay to the order
of Ghanshyam or order’, it is still payable to Ghanshyam or if he so chooses to the person
specified by him.
2ºPayable to bearer
A promissory note, bill of exchange or cheque may be payable to bearer
If it is expressed to be so payable, or if the only or the last endorsement is an endorsement in
blank. This means a cheque payable to ‘to order’ becomes a bearer cheque if it is endorsed in
blank.
If the word ‘bearer’ printed on a cheque form is scored off, it does not make the cheque non-
transferable or non-negotiable, nor does it render it payable only to the payee. Such a cheque
remains payable to order and is negotiable as such.
vi) The payee must be a certain person
The person to whom payment of the instrument is to be made must be certain. The payee is
considered as certain person for this purpose even if he is misnamed or designated by
description only. The term ‘person’ includes, besides individuals, bodies corporate, local
authorities, societies and associations of persons, etc., and cheques may be drawn payable to
the Registrar, principal, director, secretary etc., of these institutions.
vii) The payee may be more than one person
A negotiable instrument may be made payable to two or more payees jointly or it may be
made payable in the alternative to one of two or more or one of some of several payees. For
example, a cheque may be payable to;
Ram and Hari
Or
Ram or Hari
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In both these cases, it is payable to a certain person.
viii) The time of payment
A cheque is always payable on demand, though words to this effect are not mentioned
therein. A bill may be payable at sight or after a period of time specified therein. A
promissory note or a bill of exchange in which no time for payment is specified is payable on
demand. If a bill is payable after a certain period it must be accepted by a drawee. But no
such acceptance is necessary in case of a cheque. If a cheque is a post-dated cheque, it does
not constitute an order to the banker till the date specified therein approaches. Banks do not
make payment of such cheques before the date given in the cheque.
ix) Signature of the drawer or promissor
A negotiable instrument is valid only it if bears the signature of the drawer/promissor. In case
of a cheque, the signature of the drawer must tally with his specimen signature given to the
banker at the time of opening his account.
x) Delivery of the instrument is essential
A promissory note, bill of exchange and cheque is a negotiable instrument. The making,
acceptance or endorsement of such an instrument is completed by delivery. This means that a
negotiable instrument is deemed to have been drawn, when it is written by the person
concerned and delivered to the other party to whom it is meant. Delivery may be either actual
or constructive.
xi) Stamping of promissory notes and bills of exchange is necessary
Some systems require that the promissory note and the bills of exchange must be stamped.
This is not required in case of a cheque. The value of stamp depends upon the value of the
note or the bill and whether it is payable on demand or at a future date. A note or bill without
stamp cannot be admitted in evidence. It may be stamped either before or at the time of its
execution.
lº Transferability and negotiability
Transferability is a characteristic of any property. It also gives a right to the possessor of the
property to transfer it to anyone with or without consideration, provided he can establish that
he is a true owner and in that capacity he has exercised his right of transfer.
Negotiability is a characteristic of any property. It gives a right to the possessor of the
property to transfer it to any body but for consideration. Here the negotiator is not required to
establish his credentials. It is the negotiator who has to accept the property in good faith.
2º Differences between Transferability and negotiability
Transferability and negotiability are not the same. They convey different meanings. The
followings are the differences between the two:
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1 - Transferability is the part of negotiability. Negotiation without transfer either by simple
delivery or by endorsement stands meaningless. Transferability, as a characteristic, is
complete in itself. It is only exchange of hand, which is an act and which needs performance.
2 - Negotiation is an expression of faith and confidence. Transfer, on the other hand, is a
process.
3 - Negotiation parts faith in other rights and thus even if the owner is not having a good title
it does not affect the rights and title of the negotiation. Transfer is exchange of hands. Here
possession is transferred. Transferability rights need a lawful and unchallengeable title.
4- ‘Not Negotiable’ marked documents lose all essential features of negotiability. ‘Not
transferable’ marked documents can also be transferred to the person whose name is
mentioned therein.
SECTION 2. Distinct characteristics of negotiable instruments
In most cases an instrument may be negotiable either by Statute or by usage.
Five characteristics are to be considered as necessary to constitute a negotiable instrument,
instrument of payment or credit.
1. Negotiability
It refers to the ability to transfer entitlements under the negotiable instrument from one
person to another in such a manner to constitute from the transferor a holder of the negotiable
instrument. Negotiability, therefore, allows for more simplified and easy circulation. It has
the advantage of security in the sense that the rights of the holder are not dependent on the
transferor once the instrument is negotiated. As we examine specific types of negotiable
instruments, we will discover that the law distinguishes between various types of
negotiability. For example, a bill of exchange payable to bearer is negotiated by mere
delivery, whereas a bill of exchange payable to order is negotiated by endorsement of the
holder of the bill and completed by delivery.
2. Monetary value
Negotiable instruments contain a continued commitment by the issuer to pay the stipulated
sum of money. A simple statement of an object of a specified monetary value is not enough
to render a document a negotiable instrument.
3. Commitment to pay
Negotiable instruments contain a continued commitment by the issuer to pay the stipulated
sum of money. A simple transfer of credit payable to holder is not enough if the issuer does
not guarantee payment
.
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4. Short-term title
In order to facilitate a simple exchange of title, the credit stipulated in the negotiable
instrument must cover an easily obtainable and transferable payment. Long-term titles seem
to complicate such an easy transfer. There are however, no hard and fast rules as to what
constitutes a short-term title. The fact that the bank sets dates within which a cheque is to be
cashed, is not to be taken as a measurement criterion in this regard.
5. Usage and collection of title in payment
One of the consequences of negotiability is that negotiable instruments can be used and
explained in a similar to that of ordinary money. The title to some or most negotiable
instruments include most of the foregoing requirements. The prime example is that of a bill
of exchange (lettre de change) which may be defined as “an unconditional order in writing,
addressed by one person to another, signed by the person giving it, “requiring the person to
whom it is addressed to pay on demand or at fixed or determinable future time a sum certain
in money to or to the other of a specified person, or to bearer.”
Another example of a negotiable instrument is that of a promissory note (billet à ordre)
which is a written document by virtue of which the drawer undertakes the obligation
(promises) to pay to the order of the beneficiary a sum of money at a prescribed date. The
same qualifications can be found in a warrant which is a promissory note guaranteed by one
person on the merchandises deposited with a store.
There are number of possibilities as to the types of financial documents which might qualify
as negotiable instruments. To distinguish which is clearly part of these instruments, the three
main characteristics, identified earlier, must be maintained: negotiability, a prescribed sum,
and a commitment to pay.
The cheque, not recognized as a negotiable instrument under Rwandan law, resembles a bill
of exchange in a number of ways, as we will notice it in the following examination of the rule
governing cheques. The main distinguishing characteristic of the cheque is that it is drawn on
a bank and payable on order. The other distinction between the cheque and a bill of exchange
relates to the type of law governing both. Unlike most jurisdictions, Rwandan legislature has
opted for two separate laws to govern cheques and negotiable instruments. The doctrine,
however, does not seem to maintain such a distinction
It’s also important to note that the followings are presumptions related to negotiable
instruments:
a) Consideration
Every negotiable instrument shall be presumed to have been made or drawn for
consideration, and that every such instrument when it has been accepted, endorsed,
negotiated or transferred was accepted, endorsed or transferred for consideration. In
Shanmuga Rajeswara Sethupathi versus Chidamabaram Chettiar 1938 (India), it was held
that where a promissory note had been given, consideration should be presumed and that the
burden of proving that no consideration passed was upon the maker of the promissory note.
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b) Date
Every negotiable instrument bearing a date is presumed to have been made or drawn on such
date.
c) Time of acceptance
Every accepted bill of exchange is presumed to have been accepted within a reasonable time
after its date and before its maturity.
d) Time of transfer
Every transfer of negotiable instrument is taken to have been made before its maturity.
e) Order of endorsement
The endorsements appearing upon a negotiable instrument are presumed to have been made
in the order in which they appear thereon.
f) Stamp
It is presumed that a lost promissory note, bill of exchange or cheque was duly stamped.
g) Holder in due course
It is again presumed that a holder of a negotiable instrument is holder in due course.
However, where the instrument has been obtained from its lawful owner or from any person
in lawful custody thereof, by means of an offence or fraud, or has been obtained from the
maker or acceptor thereof by means of an offence or fraud, or for unlawful consideration, the
burden of proving that the holder is a holder in due course lies upon him.
6. Distinction between promissory note and bill of exchange
Promissory note differs from a bill of exchange in the following respects:
Bill of Exchange
Promissory Note
Cheque
There are three parties
the drawer, the drawee
and the payee- although
only one and the same
person may fill two of
these capacities.
There are only two
parties the maker
(debtor) and the payee
(creditor)
Three parties (the drawer,
the drawee which is a
bank and the beneficiary)
It contains an
unconditional order to
the drawee to pay
according to the drawer’s
A note contains an
unconditional promise by
the maker to pay the
payee.
Unconditional order to
pay the beneficiary
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directions.
The drawee or his agent
must accept a bill
payable after sight before
it is presented for
payment.
No prior acceptance is
needed
Not only is Acceptance is
not n
eeded, but also the
cheque is not entitled to
days of grace
The liability of the
drawer is secondary and
conditional upon non-
payment by the drawee.
The liability of the maker
or drawer is primary and
absolute.
The liability of the maker
or drawer is primary and
absolute.
Notice of dishonour must
be given by the holder to
the drawer and the
immediate endorsers to
hold them liable thereon.
No notice of dishonour
need be given
Notice of dishonour is
not necessary
. The
parties thereon remain
liable, even if no notice
of dishonour is given.
The maker or drawer
does not stand in
immediate relation with
the acceptor or drawee.
The maker of the note
stands
in immediate
relation with the payee
The maker or drawer
does not always stand in
immediate relation with
the drawee.
A. DEFINITION OF CERTIFIED CHEQUE
A cheque is a certified title by which a person called a drawer calls upon a banker (drawee) or
any other institution authorized to carry out banking activities to pay to another person called
a beneficiary (payee), a specified sum of money either to the beneficiary, to his order, or to
bearer. Note that the cheque is always payable on demand or upon presentation.
A drawer is the person who draws/creates the cheque and is a creditor of the drawee. The
drawee is the person on whom the cheque is drawn, i.e., the one supposed to effect payment.
The payee is the person for whose benefit the cheque is drawn, that is why he is regarded as
the beneficiary.
The relationship between the two is contractual in nature. It is a debtor and creditor
relationship whereby the creditor who is the drawer (customer) is obliged to deposit money
with his banker (drawee) who has the duty to repay the money upon demand by virtue of
cheques drawn by the customer. Therefore, the drawer must fulfil his obligation so as to
make it obligatory for the drawee to pay when asked to do so.
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B. CONTENTS OF THE CHEQUE
There are six requisites (important elements) to be present when one is creating a cheque. The
cheque must contain the following: the word ″cheque in both text and title, an order to pay a
specified sum of money, the person to be paid (payee) place of payment, date and place of
drawing and lastly the signature of the drawer.
The fact that the word cheque must be evident in both text and title implies that if a bill
contains all the requirements for a cheque but is not headed ″cheque″ then the bill is not a
cheque and vice versa. Note that the title refers to the heading while the text refers to the
content of the cheque.
Although one of the requisites of a cheque is that the payee must be mentioned, this is not
always the case given that the same law recognizes bearer cheques.
The essence of date of drawing seems to be to assist in the computation of time within which
the cheque must be presented for payment which is 60 days for cheques drawn in Rwanda
and 120 days for cheques drawn abroad payable in Rwanda.
The drawer’s signature is very important. A drawer becomes liable when he signs and
delivers the cheques. However, the signature may be replaced by an authentic declaration
certifying the willingness and capacity of the drawer. For a drawer to incur liability on the
cheque, he must have the capacity to contract.
C. REQUIREMENTS FOR CREATION OF A CHEQUE
There are two important requirements of with regards to requirements of substance.
-The first is the existence of disposable funds and the second is the existence of a drawee.
Who disposes of the funds upon the drawers order.
Before drawing a cheque, the drawer must ensure that he has enough funds in his account
except where there is an agreed overdraft. Rwandan law does not recognize post-dated
cheques. As such, the moment a cheque is drawn, the payee has the right to present it for
payment at any time provided the time period for presentation for payment has not elapsed.
-Second, the drawee is always a banker or an institution authorised to handle operations
involving cheques and who must be designated on the cheque and his duty is to honour the
customer’s cheque up to the amount of his credit balance or agreed overdraft if any. Should
the bank dishonour the cheque, the holder cannot sue the drawee (bank) on the cheque, since
there is no privacy of contract (no contractual link) between them. However, he may sue the
drawer or subsequent endorsers.
Note that a cheque drawn on an institution other than one authorized to carry out banking
services is an invalid cheque.
D. FORMS OF CHEQUES
Three types of cheques are recognized under Rwandan law. The determination of the form
depends on how the beneficiary is indicated in the cheque. A drawn to named person with the
clause ″to the order″, to a name.
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a) A cheque payable to named person with or without clause
″
to order
″
This kind of cheque may take three different forms.
a) It may be
″
pay x or order
″
,
″
pay x
″
, or
″
pay to the order of x
″
. This implies that x may
negotiate the cheque to someone else by endorsement.
This type of cheque has advantages over the others. Compared to a cheque payable to a
named person with clause″not to order” it can be transferred by simple endorsement and
delivery, whereas the other one cannot be transferred. It is at the same time safer than the
bearer cheque. Anyone in possession of a bearer cheque holds a good title and has the power
to negotiate it. As regards the order cheque, only the named person has a good title and is the
only one who can endorse it. Therefore, in case of loss or theft, the true holder of an order
cheque holds a better title.
b) Cheque payable to a named person with clause “not to order”
This kind of cheque can only be presented for payment by the person whose name is
indicated on the cheque. The holder of such a cheque cannot transfer it because it is non-
negotiable in form. However this cheque may be endorsed by a drawee and this is only done
in case the drawee owns several establishments such that he draws a cheque to one and
endorses it to another.
The advantage of this cheque lies in the fact that whereas a cheque payable to a named person
may be stolen since it is transferable, this kind of cheque cannot be of any use to someone
who may steal it or one who may find it in case of loss because the drawee does not verify the
signature but the identity of the holder.
c) Cheque drawn payable to Bearer
This kind of cheque is either drawn with an indication “payable to bearer” or it may be left
blank. The holder of such a cheque may either cash it or negotiate it to someone else.
Negotiation may be by simply transferring (simple delivery) the cheque to another person in
which case it remains a bearer cheque or it may indicate the name of the person by
endorsement, which changes the cheque to an order cheque.
E. GUARANTOR OF PAYMENT
The drawer is the guarantor of payment. A guarantor is a person who promises to pay for
something if the person who should pay does not. By virtue of drawing and issuing the
cheque the drawer becomes firstly liable as guarantor of payment. However, there are also
secondary guarantors of payment who are endorsers.
F. NEGOTIABLE CHARACTER OF A CHEQUE
Negotiation is the transfer of a negotiable instrument (cheque) in such a form that the
transferee becomes a holder. A holder is a person in possession of a cheque that is properly
endorsed to him, i.e., meets all the legal requirements for endorsement.
Note that only a cheque payable to order or to bearer is negotiable. While an order cheque
may be negotiable by endorsement, a bearer cheque may be negotiated by simple delivery.
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Endorsement may designate the transferee. When it does not designate the transferee, it is
referred to as endorsement in blank.
Endorsement may be made on the back of a cheque or on a separate sheet attached to the
cheque (this is usually done where there are several endorsements on the back of the cheque
and there is no space left for further endorsements.
The law provides that the cheque is payable upon presentation or demand. A cheque
presented for payment before the date of issue is payable on the day of presentation. In other
words, the date on which the cheque is presented is deemed to be the date of payment. It
follows that from the date the cheque is issued it may be presented for payment immediately
or at a future date regardless of whether it is post-dated, undated or antedated.
For a cheque issued and payable in Rwanda, presentation for payment should be done within
60 days while cheques issued abroad but payable in Rwanda should be presented within 120
days. After the expiry of this period, if the cheque is presented for payment and it is
dishonoured, the bearer of the cheque may not have recourse against the drawer on the
cheque, although he may sue him on the original debt.
The amount specified on the cheque must always be indicated in both letters and figures and
in case of any discrepancy between the two, the amount in letters shall be presumed to be
payable. In practice cheques with differing amounts in letters and figures are returned
unpaid.
Furthermore, where there are several amounts denoted on the cheque, the lesser amount shall
be the one payable. The rationale being to forestall alterations that may be made on the
cheque before, if one is ever going to alter the amount specified on the cheque, he/she would
have to put an amount that is greater than the original one. The provision is to protect the
drawer.
It is the duty of the banker who pays an endorsed cheque to examine the regularity of the
endorsement, but not to establish that the signatures are correct. The drawee is also required
to verify the dates of payment to ascertain if the time allowed for presentation for payment
has not expired, and if it has expired, if no revocation or opposition to payment has been
made.
In case of a cheque drawn to bearer, without any endorsements, the drawee will examine the
drawer’s signature and the amount specified to confirm that there are no alterations or
forgeries done. With respect to a cheque payable to named person, the drawee will verify the
identity of the payee in addition to what has been mentioned above.
Crossing is a special restriction on the payment of the cheque, which is usually effected by
drawing two parallel lines across the cheque. The implication is that the cheque must not be
paid across the counter.
This special restriction on payment takes two forms, i.e., there are two kinds of crossing:
general crossing and special crossing. It is general crossing when two parallel lines are drawn
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across the cheque with nothing mentioned. General crossing implies the cheque in question
can only be paid through a bank account and not across the counter. Special crossing is when
a specific bank is named between the parallel lines. The implication is that the cheque must
be paid to the banker named in the crossing.
General and special crossing give additional protection to the holder in case of theft, for the
thief may not have a bank account and even if he has, the time involved in clearing the
cheque enable the drawer to stop payment. In addition it is easier to trace the thief.
A general crossing may be transformed into a special crossing but the converse does not
apply. It should be noted that if the banker fails to observe the crossing, the banker is liable to
the drawer for any loss suffered by the drawer.
Default of payment may be defined as absence of payment implying the cheque is not paid
upon presentation and yet it fulfils all the legal requirements and is presented within the
period allowed by law. Usually there is default of payment when the drawer does not have
sufficient funds on his account. Sometimes, there is wrongful dishonour and this is when the
drawee by mistake refuses to pay a cheque drawn on him by his customer when the funds are
available.
The effect of default of payment is that the holder may seek redress against the drawer and
subsequent endorsers either jointly or severally. The holder’s redress may be one of protest
and attachment or seizure of moveable properties.
A protest is a formal statement in writing made at the request of a holder of a cheque, in
which it is declared that the cheque was on a certain day presented for payment, and that such
payment was refused, and stating the reasons, if any, given for such refusal. For this right
(right of protest) to accrue to the bearer of an unpaid cheque, the bearer must have contested
non payment in one of three ways: by notarial act (i.e. the statement in writing be made under
the hand and seal of a notary (protest), Declaration by the drawee (banker) dated and written
on the cheque indicating date of presentation, Declaration by a clearing-house (NBR) stating
that the cheque was presented with the time allowed by law and that it was returned unpaid.
Note that a protest is made on the cheque itself or on a separate sheet attached to the cheque
and must be delivered to the parties concerned. The rationale is to give either the drawer or
drawee time to cure the mistake as the case may be.
The protest is required to be made within the time for presentation of the cheque for payment.
However if presentation is made on the last day within this period, the time is extended to the
next working day. However, if there is delay in making a protest, the time may be extended
by the courts provided the plaintiff could establish exceptional circumstances.
As regards the place where the protest is to be made, the place shall be the location of the
bank where the cheque is payable.
The holder of an unpaid cheque is required to give notice of default of payment to the drawer
and/or subsequent endorsers within four working days from the date the protest or declaration
was (re-)established. Similarly, the drawer or endorser who has been given notice is required
to notify the rest or the next endorser or drawer within two working days from the date he
was notified.
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Conservatory attachment is the act or process of seizing a person’s property by virtue of a
judicial (court) order, and bringing the same into the custody of the court, for the purpose of
securing a debt or claim of the creditor in the event where judgment is rendered. This act will
prevent the owner from disposing of the property in anticipation of its judicial sale.
The unpaid bearer may attach the property (moveable) of the drawer and endorsers by
obtaining an order of the court of first instance of the place where the property is located.
Note that this remedy is available only to the bearer of an unpaid cheque who has protested
default of payment. However, the property can be sold after a judgment in execution has
been passed authoring the judicial sale of the property. The bearer of an unpaid cheque who
seizes the property of the drawer or endorsers acquires a privilege over other creditors of the
owner.
While the drawer and the endorsers are individually and collectively liable to the bearer of an
unpaid cheque, the banker is liable to the drawer in case of wrongful dishonour.
The bearer may claim from the person he has sought redress: the amount specified in the
cheque, interest from the date of presentation calculated at 6%, fees of protest or declaration
and the expenses of giving notices and a commission of 1/3 of the original sum, in case it is
justified, in the absence of any agreement to the contrary.
Opposition of payment implies stopping payment. It is usually done by the drawer of the
cheque informing the drawee that the cheque in question should not be paid upon
presentation. Opposition is required to be made by registered letter.
Opposition can be allowed if the cheque is lost, if its title is obtained fraudulently, or if the
bearer has been declared bankrupt or incapacitated.
When a drawer bank does certify a cheque, it substitutes its undertaking to pay the cheque
and becomes primarily liable for payment of the cheque. At the time a cheque is certified, the
bank usually debits the customer’s account for the amount of the bank. It also adds its
signature to the cheque to show that it has accepted primary liability for paying it. The bank’s
signature must appear on the cheque.
The bearer of an unpaid cheque has a time of six (6) months in which to institute an action in
court against the drawer and endorsers. Computation of time starts from the date of expiry of
the time allowed for the presentation of the cheque for payment. Actions by persons obliged
by the cheque against one another, that is, drawers and endorsers are also valid within six
mouths.
Issuing cheque without sufficient funds to cover the cheque constitutes a crime punishable
under Art. 435 PC by imprisonment of 3 months to 5 years and or a fine of up to 300.000
Frw.
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STUDY UNIT 12. THE LAW OF PROPERTY
Property law or the law of property is the area of law concerned with the study of the legal
relations between persons with respect to things. The things in question are, as economists
convince us, scarce resources, for where things are in abundance there is no need for rules to
regulate for their access and control. The law of property comprises the rules as to how
persons can acquire, dispose of and lose rights to such things, various types of rights which
may be acquired, the way in which such rights can be held, and how far the rights of access
and control of a particular thing are against third parties.
SECTION 1. Definition of property
What is Property? How should we identify and describe the ownership of property? If
someone owns property, what is the range of things he may do with it? Possess it? Use it?
Sell it? Destroy it? What limits does the law place upon a person’s enjoyment of property in
order to protect the public interest catered for by civil code Book II. How is this right
(ownership) compared with other legal rights such as contract rights, civil rights to bring an
action in tort-which are covered by Rwandan civil code Book III and others?
Consider, for example, a type of property important to most of us. Notice a car that Mr.
Mugabo drives. If we describe him as the “owner’, does that tell us everything we may want
to know about his legal rights with respect to that car? Who else may have a claim to that
car? Perhaps his parents loaned or gave it to him, or perhaps he bought it from an auto dealer.
If a bank loaned Mr. Mugabo some money to finance his purchase of the car, does that bank
own an interest in a car? If Mr Mugabo lends his car to his friend for a week while he is on
vacation or on a mission outside the country, does his friend have a property right in the car?
If Mugabo is married, does his wife have any legal right with respect to the car? To what
extent may the state, on behalf of Mr. Mugabo’s fellow citizens, regulate Mugabo’s use of the
car? Should we take it as an infringement on Mr. Mugabo’s property rights? Such are the
questions to be answered by this part of the course - Property law.
In the popular lay sense, the term “property” usually refers to tangible things. A person’s
property, we say, consists for example; his car, furniture, clothing, tools, and the like. Land
ownership and intangible property, such as bank deposits, stocks, and bonds are also often
imagined as ownership of things. In the study of law, the term “property” often is used in a
legal sense different from the popular image as referring to a thing.
Different authors have attempted to define what the term “property” means, and among them,
we note a few.
To begin with, the two French authors11 in trying to figure out what the term “bien” means.
Note that, the term has at least two meanings; the moral and legal meaning. From the moral
point of view, the term refers to what is appreciated - good as opposed to bad. The second-
legal meaning is anything useful that satisfies the material needs of man or simply a
good.
11 P. Malaurie et L. Aynès, Les Biens, 2e éd., Defrénois-Editions juridiques associées, Paris, 2005, p.1.
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Sir William Blackstone, an eighteenth-century English barrister in his commentaries as a
guide for laymen wrote; “The third absolute right, inherent in every English man, is that
property, which consists in the free use, enjoyment, and disposal of all his acquisitions,
without any control or diminution, save only by the laws of the land… There is nothing
which so generally strikes the imagination, and engages the affections of mankind, as the
right of property; or that sole and despotic dominion which one man claims and exercises
over the external things of the world, in total exclusion of the right of any individual in the
universe.”12
These words of Sir William Blackstone leads us to the Latin Maxims which shows the
dismemberment of property rights into; Usus (use), Fructus (Enjoyment) and Abusus
(disposal) which we shall talk about later in this course. He also brings a relationship to our
article 14 of Rwandan Civil Code Book II, which states that: “ownership is the right to
dispose of a thing in an absolute and exclusive manner, except for the restrictions that result
from the law, or from the real rights belonging to others.” This, we shall talk about later in
this course.
The American Law Institute in 1936 in its Restatement of what property is, notes; “The word
“property” is used sometimes to denote the thing with respect to which legal relations
between persons exist and sometimes to denote the legal relations”.13
The word “property” in this restatement is used to denote legal relations between persons
with respect to a thing. The thing may be an object having a physical existence or it may be
any kind of an intangible14 nature such as a patent right or a debt that your debtor owes you.
This definition brings us to something great in our course of property law - the legal
relationship of this thing (property) with a person. This is the centre of our interest.
Nicole Hendebert-Bouvier, a French author of the book “Droit Civil et Commercial” defines
“property” as a set of rights and obligations that a person has over a thing. These rights and
obligations must be of Economic value. They consist of all the property which is represented
at the same time by the things and rights that we have over those things.15
Property in its most technical legal sense is an intangible concept, signifying the rights,
privileges, and powers that the law recognizes as vested in an individual in relation to things
tangible or intangible, as distinguished from the things themselves. It includes every interest
any one may have in anything that may be the subject of ownership, including the right to
freely possess, use enjoy, and dispose of the same.16 The sum of all these proprietary rights
under English law for example is distinguished as “title’ to property. In its popular usage, the
term “property” refers to objects that may be the subject of ownership - both physical objects
capable of being reduced to possession (infra) and such intangible items as goodwill (the
positive impression that people may be having in a business for example).
12 J.C Smith et. al., Property-case and Materials, Aspen publishers, New York, 2004 Pg 2.
13 Idem
14 Tangible or intangible/corporeal or incorporeal property will be discussed later in this course.
15 N.B. Huedebert, Droit civil et commercial, 5e edit, Paris, Presse Universitaire de France, 2002, Pg.1113.
16 Micheal. P. Litka , « Interests in real property », Business Law, (1970, Harcourt, Brace& World Inc.), p.640
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Proprietary rights are exclusive rights17 of the individual owner and are protected against
infringement by others. In the last analysis, these rights represent a relationship between the
owner and other individuals with respect to objects that are capable of being owned.
Third parties must be able to know what rights the owner or the usufructuary have on that
property.
To summarize all the above definitions in a metaphoric manner, property today is often taken
to be like a “bundle of rights” or, more vividly, a “bundle of sticks” with each stick
representing some separable aspect of the total - which total is the property. This metaphor,
drawing on sources like the Restatement and that of Sir William Blackstone, emphasizes that
property is not an all-or-nothing proposition, but a number of different aspects of control
which may be examined separately. Complete ownership of a property means that one person
has all the sticks (rights) with respect to a thing. He may open the bundle and divide the
sticks (rights), resulting in shared ownership with several people each having some sticks
(rights).18
So, property is an aggregate of rights that a person has against a thing tangible or intangible,
that are protected by the state through its laws. This thing upon which a person exercises
these rights must be of economic value and subject to acquisition.
1. Property and Patrimony
Whereas property has been exhaustively defined, at times it is confused with another
interesting term - "Patrimony".
Patrimony is wider than Property. Property itself is a subset of Patrimony. From the moment
a child is born, he/she owns the patrimony even though he/she owns no property. The
patrimony owned by this child is based on the property in his/her being a person.
John Locke, an English philosopher in his writing on the two treatise of Government wrote"
though the Earth and all inferior creatures be common to all men, yet every man has a
property in his own person. This, nobody has any right to but himself".… Locke says that
"every man has a property in his own person" , from which it immediately follows that " the
labour of his body, and the work of his hands ……….are properly his."
If it makes sense to say that one owns his/her body, then, on the embodiment theory of
personhood, the body is quintessentially a personal property because it is literally constitutive
of one’s personhood. If the body is property, then objectively, it is property for personhood.
This line of thinking leads to a property theory for the tort used in common law of assault and
battery. So the interference with my body is an interference with my personal property.
The idea of property in one’s body presents some interesting paradoxes. In some cases,
bodily parts can become fungible commodities (to be talked about in details later), just as
other personal property can become fungible with a change in its relationship with the
owner : For example, Blood can be withdrawn and used in transfusion; hair can be cut off and
used by wigmakers, body organs like the kidney can be transplanted.
17 Art. 1 of the Rwandan Civil code book 2.
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On the other hand, bodily parts may be too "personal" to be property at all. We have an
intuition that property necessarily refers to something in the outside world, separate from
oneself. Though the general idea of property for personhood means that the boundary
between person and thing cannot be a bright line, still the idea of property seems to require
some perceptible boundary, at least in so far as property requires the notion of thing, and the
notion of thing requires separation from self. This intuition makes it seem appropriate to call
parts of the body property only after they have been removed from the system.
Patrimony is composed of the present property (rights) and the future, something important to
distinguish it from the definition of property. Article 1 of the decree law regarding
hypothecs19 in Rwanda provides that "All the property of a debtor, present and to come,
constitute the common pledge of his creditors…”
This means that, the pledge is on his patrimony which is the present property and the property
to be acquired later. On the other hand, article 1 of the civil Code Book II categorizes the
property as " property or real rights are of three kinds: the rights to claim or obligation, the
real rights and the intellectual rights".
To say that something is “property” only begins the analysis. The next question is which
rights accompany ownership of this property. At one time, property was considered as a thing
subject to the complete control of its owner. This pushes away the notion of personhood in
the composition of property. More recently, property has been, as already given, defined as a
bundle of sticks – a collection of individual rights which, in certain combinations, constitute
property. But these rights are talked of in relation to a person. They are rights entitled to this
person over a thing. Nonetheless, even before that thing to which this person is entitled some
rights, this person has the patrimony.
To a lawyer, patrimony is quite distinct from property which forms part of the patrimony.
Patrimony covers also the “property to be” that is, the property that will in future, belong to
the person.
Hence, the patrimony, which is considered to be a combination of rights and obligations, is
inseparably linked to the personality. This means that it forms part of the other two elements:
pecuniary and the juridical universality. From this come some other outcomes. On one hand,
the patrimony of a person, understood as a set, responding to the obligations upon this person,
his creditors can even seize his property that was acquired after the birth of their claim (art. 1
of the decree law on hypothecs). On the other hand, the idea of universality functions in what
we call “real subrogation”. This means that the different property constituting the universality
can change but, the universality remains.
The new property will replace the old one, and it will be subjected to the same legal regime
as the one which it replaced. Thus the real subrogation guarantees the juridical stability
situation. This is why the patrimony of a debtor constitutes the general pledge of his
creditors. Since the Civil Code does not explicitly give what the term patrimony is and what
it entails, some authors (e.g. Aubrey and Rau both teachers of civil law) are used in a bid to
show the link between the patrimony and a person.
19 In Roman and Scots law an Hypothec is a Mortgage; in other words, a legal right over a debtor's property that
however remains in the debtor's possession
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They put forward four principles:
1. Only persons can have patrimony. You cannot think of patrimony without thinking of
a person to whom this patrimony is attached.
2. Each person necessarily has patrimony, because he/she is able to have the rights and
obligations.
3. The patrimony remains attached to the person as long as his personality is still valid.
It cannot therefore be transferred ( intransmissible entre vifs). A person can transfer
some of the rights which he possesses over something e.g. his rights of ownership of
an immovable, but the acquirer acquires the right transferred, not the patrimony.
4. A person cannot have more than one patrimony. Like the personality, patrimony
cannot be divided. What is divided or transferred is the right(s).
2. Property and things/ Things and Rights
What are things? This fundamental question is as old as the Earth. It was first put to light by
the western philosophy through the Greeks in the 7th Century before Jesus Christ. Such a
question of what a thing is has a multiple meaning. Things can be objects - a stone, a piece of
wood, and others which are important in our daily lives. But what one notices is that all
things cannot go as they wish. Some rules will have to be applied to their transfer and
ownership. This is based on the economic principle of scarcity, and to some extent, in order
to keep law and order/harmony in society.
Things have got a double meaning:
The restricted meaning of a thing is anything that can be acquired, which can be seen
(visible), etc., which can be given or transferred from a hand to another. To the extended
meaning of a thing, it means everything, transaction; all of which, that surrounds us, the acts,
the events and happenings in this world are all things. It is this combination and wider
meaning of a thing (often referred to as property) that interests a lawyer.
The law also cannot ignore these two meanings of the term "thing". For example art. 260 of
our (Rwandan) civil code Book III stipulates that "we are not only liable for the prejudice
caused by our own acts, but also to those which are caused by persons who are under our
control, or things which are under our supervision…" Of course, a herdsman, just like the
owner of a Cow will be responsible for the damages caused by this Cow. Here, this animal
becomes a thing. So a thing is not restricted to be only objects. It can be a house, air, insect;
in short a multiple of things as can be in the prairies during the summer season.
Property in Economic terms is something that can be used directly or indirectly for Economic
gain for example, for the acquisition of money, or in exchange for another thing. Legally, the
term property is a right itself over something. For example, a right over the bicycle that you
own, the right you possess to acquire certain things. In short, it means patrimonial rights.
However, legislators sometimes use the word “thing" to mean property (e.g. art 12 and 31 bis
CCB II) which draws a major confusion between the two terms (thing and a property) in our
Civil Code.
Article 12 of the Civil Code Book II stipulates that “all "things" ( which can also be replaced
by property) without an owner belong to the state in respect of customary rights over them by
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the indigenous people, and subject of what will be said later on about the right of
occupation". Here, the word “things " can as well be understood as property which does not
have the owner (master). So in a word, ‘’ things ‘’ and ‘’ property’’ in our code are confused
and are often used interchangeably.
3. Patrimonial and Extra- Patrimonial rights
A person can have either patrimonial rights over a thing or an extra-patrimonial right over a
given situation.
A. PATRIMONIAL RIGHTS
A number of rights are considered to be patrimonial. These will include the right of
ownership or the right to claim like the right of the landlord to claim his rent for the house he
owns. Patrimonial rights are always of Economic value and always gauged in terms of
money. They have an exchange value: they can be acquired by the new owner mainly through
their exchange for other rights. They can be transmitted to inheritors and to the legatees of
their owner (or holder): they can be seized by their creditors, they are stricken by prescription
whether acquisitive or extinctive one.
Among the patrimonial rights, there are those which are more attached to the person (owner/
holder) than others. This is why, such rights cannot be exercised by the unpaid creditors of
their holder when the former (the creditors), by way of protecting their general pledge over
the property of their debtor, exercise what is termed as “oblique action”.
Art 64 of the Civil Code Book III stipulates that « Creditors can exercise all rights and
actions of their debtor, save for those which are exclusively attached to his person». Here we
should know that, although these rights are patrimonial in nature, they have either personal or
family character that their exercise will call for other considerations of moral order to which
only the debtor can know and appreciate their value.
Thus, the creditors cannot use the oblique action to exercise the suppression action or to
attack the alimony (pension alimentaire) meant for the debtor, or stand in revocation for the
donation between spouses.
Although the law is silent, an analogous question is put over the topic of the “Paulian action”
which allows creditors to attack by themselves all the fraudulent acts accomplished by their
debtor and which prejudice their rights. However, as a solution in such a case, the fraud is a
behaviour worse off than a simple negligence to the extent that the moral and personal
considerations that justify the exclusion of the oblique action disappears in favour of the need
to sanction the act of fraud.
B. EXTRA-PATRIMONIAL RIGHTS
By considering the direct object of these rights, one can say that they are not of Economic
value. For example, the right to acquire natural parenthood to a person, parents’ rights over
the “person “and property of their child (attributions of the parental authority), the right of an
author of a book to decide to publish it or not: we call these extra-patrimonial rights as
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opposed to patrimonial ones whose direct object or reason is to ensure the protection of the
pecuniary or monetary value and which have, within themselves, the monetary value.
Family rights (e.g. parental authority) are extra-patrimonial rights. In all legal systems, family
life (rights) will ensure the satisfaction of sexual needs, to oversee the duty to procreate, the
education of the children and to ensure that the life together as spouses flourishes. Each
person in this family life enjoys and is a creditor to that right, but from which, no economic
gain is waited for.
Contrarily to the patrimonial rights, extra- patrimonial rights are not seized and are not
transmissible to the heirs or legatees of their holder, creditors can benefit from them and such
rights are imprescriptible, whether acquisitive or extinctive prescription.
SECTION 2. Real rights
Property rights or real rights are exercised by an individual over a thing, movable or
immovable. The bearer of a real right exercises it directly over a thing without interference of
anybody on the thing on which he has custody. They are different from the Obligations or
rights which are also referred to as personal rights. An obligation may be defined as a legal
bond between two persons by which one is bound to the other to perform an act or to abstain
from doing an act, or to create a right over something or to transfer its ownership. A personal
right is thus the right that a person named a creditor has against another person named debtor
by which the former (creditor) may compel the latter (debtor) to do, to refrain from doing or
to give something. Among the real rights recognised by the Rwandan Civil Code Book 2, one
can mention: Ownership, usufruct, servitudes, superficies, emphyteusis, etc.
1. Ownership
A. INTRODUCTION AND DEFINITION
Definition: « Ownership is the right of disposing of things in the absolute and exclusive
manner, subject to any restriction of the law and the real rights belonging to other persons»
(art.14 CCBII). The same article also provides that «Restrictions of the right of ownership
resulting from the relationship between neighbours are established in the title concerning
charges on Land».
The first paragraph of this article corresponds to art.544 of the French code which provides
that «Ownership is the right to enjoy and dispose of things in an exclusive and absolute
manner provided that it does not violate the established rules and regulation».
After the abolition of the Feudal privileges by the French Revolution of 1789 and after the
consequent declaration of the human and citizens rights, ownership was acknowledged as an
absolute inviolable and a sacred right. None can be deprived of this right save only when the
public necessity legally constituted so requires, and subject to a condition of prior and fair
indemnification or compensation.
Since then to date, the concept of the right of ownership is considered as a total and an
exclusive right strictly reserved to the usage and enjoyment of individuals. Rwandan
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constitution recognizes the ownership right where it says «Every person has a right, to private
property, whether personal or owned in association with others» (Art. 29 of Rwandan
constitution, J.O No. special of 04/06/03).
The same article also insists on the inviolability of the right of ownership by saying «Private»
property, whether individually or collectively owned, is inviolable.
The right to property may not be interfered with except in public interest, in circumstances
and procedures determined by law and subject to fair and prior compensation» art.19 (2) and
(3) respectively.
B. THE HISTORY OF THE OWNERSHIP RIGHT
Individual ownership has for centuries been the basis for the Economic systems and policies
for all civilized peoples of the world. In the primitive societies however, only moveable
objects meant for personal use such as clothing, arms, domestic utensils, ornaments, etc. were
the ones reserved for individual ownership. Land belonged to the whole tribe, family or
briefly, belonged to no-one in particular.
Such collective ownership of property is self-explanatory since, the only way of life was by
hunting, fishing and collecting fruits from natural forests. This required no individual
ownership of land or waters as it would as a consequence reduce your chances of extended
hunting, fishing and fruit collecting. Families or tribes could however, restrict their hunting,
fishing or fruis collecting but no individual in isolation from others could do it.
Even when life transformed into that of cultivating and rearing domestic animals, individual
ownership was not so sudden. There was collective farming and collective rearing of animals
in divisions of at least families. Little by little, constant cultivations by the same family on
the same land naturally turned such a land to the family land and later, to be owned
individually.
To the Romans, it started during the reign of king NUMA (715-673 BCE) who introduced the
temporary sharing of land by individuals to cultivate it and enjoy the fruits from it, but as
soon as the harvesting was over, the land turned to collective ownership and awaited for
redistribution/sharing for the next season. Slowly by slowly, land which was given to an
individual could be cultivated by the same individual season after season, and consequently
built a house on the same land to facilitate his works on that land. From this, individual
ownership of land was reached, for which the Pater familias was responsible. So the present
day individual ownership of property descends directly from the dominium ex jure quiritium
organized by law referred to as the 12 tables.
That dominium conferred to the one having this land, invested in him an exclusive, sovereign
and perpetual right over that property with the three elements; jus utendi, fruendi, and
ubutendi.
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C. CHARACTERISTICS OF THE RIGHT OF OWNERSHIP
The right of ownership is an absolute right:
• It is exclusive in a sense that only the owner exercises his/her right over the
property (thing) save for usufruct and servitudes
• It is individual or personal in that only the ownership has the right. However,
there are some cases of collective ownership such as in successions or in co-
ownerships (also matrimonial regime under common property, or community
of acquired property after marriage).
• It is a right that gives freedom to the owner to use his/her property in any way
he/she feels fitting. But in this case, case law has developed some limitations;
• The right of ownership is perpetual in that it lasts as long as the property upon
which this right is exercised still exists. The right to ownership cannot be lost
by the mere non use of the property. However, the owner who does not use
his/her property may lose the ownership right to a third party who possesses it
or who occupies it by the mere fact of acquisitive prescription (to be talked
about later on possession).
D. ABUSE OF THE RIGHT
The owner is not allowed to use his/her property with an intention of damaging or injuring
the neighbours. Where this is established, the court will rule for the payment of damages to
the neighbour equivalent to the prejudice caused, as well as the civil interests.
For example,1. Raising or erecting a wall of 3 metres high to hide the sight of the
neighbour’s house. 2. Letting the household discharges, e.g. foul water etc.,, into your
neighbour’s compound.
E. PREROGATIVES OF THE OWNERSHIP RIGHT
Ownership right is the most complete real right one can talk about because it is the only one
which accords to its owner all the three prerogatives; ie Usus, Fructus and Abusus. Art.1 of
the civil code Book II makes an introduction of the concept of ownership and the related
rights such as superficiary, emphyteusis, and servitude – see below
The same article (art.1CCBII) also mentions the dismemberment of this right of ownership
where it talks of the right to use and habitation as well as the right to usufruct.
In principle, the full owner of a property must be having all the three mentioned sub rights
which compose the ownership right (Usus, Abusus and Fructus).
1. Usus -The right to use
As already seen from above (as per the provisions of art.1 (2) the right to use is a real right. A
person is free to use his property e.g. a house, by occupying it or a farm by cultivating it, or
any kind of use of your property.
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Negatively, in a sense, though, some authors have asserted that this right also includes the
right of not using your property; the right not to occupy your house, the right not to consume
the goods that you have, the right not to drive your car, and others.
Note: whether to use or not to use your property in the way that is convenient to you must go
hand in hand with the observation of the limitations provided by the Law.
Such limitations to this prerogative include those established to meet the interests of good
neighbourliness like the legal servitudes (e.g. a charge imposed on an immoveable by the
law), limitations concerning the sight of your neighbours, the paths, the plantations, etc.
Other limitations include those which are there for the general interests as in
• urbanization - construction licences, land development plans,, protection of Memorials or
historic sites;
• Hygiene and sanitation rules - stopping people from rearing animals in towns and cities,
disposal of waste etc.);
• Agricultural policy of the Ministry of Agriculture and Animal Resources regarding how a
given type of land will be used;
• Expropriation due to the public utility of your property (e.g. Land for the construction of
a road or a public school or market).
Such limitations apply to or affect all the prerogatives of the right of ownership.
2. Fructus- Right to enjoy fruits
The right to enjoy fruits from your property or from the property on which you exercise the
real right. Here fruit is a general term and not solely agricultural produce, although the
legal term grew from this base.
This is the right of harvesting all the fruits that are given by that property. From this, a
distinction should be made between fruits that are harvested or acquired periodically without
changing the state or substance of the thing (property), and the products, the “harvesting” of
which do transform the property such as in the case of mining stones from a quarry to be used
in road construction or mining cassiterite to make tin where the property can be destroyed.
Fruits have been divided into; Natural fruits like those harvested from Natural trees or even
timber from those trees: civil fruits such as rent from a real property e.g. a house or land,
interest (income) from the money saved in a bank, etc.; and then, there are “industrial” fruits
which are mostly from the works of man (man’s labour) such as the agricultural produce or
any other produce that is not of a regular basis and which diminishes totally or periodically.
3. Abusus - Right to dispose of your property
The right to dispose of your property can either be physical or legal. The physical disposition
of property can be for example by deciding to destroy or demolish your house when you want
to use the parcel on which it is built for another purpose. The legal disposition on the other
hand, is where you decide for partial or full alienation of the right on your property for
example by allowing other people to use your land or house through e.g. donation or through
a sale contract.
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It (Abusus) should not be confused with the usus - right to use. Abusus involves the transfer
of right of ownership to another person whereas in usus, the ownership remains in the same
hands even when someone else is using the property.
F. EXTENT OF THE RIGHT OF OWNERSHIP
Ownership of a thing whether moveable or immoveable means that the one with this right has
the right to use and enjoy the fruits of his/her property - in short, the property and all that
comes from it. The owner of Land for example has the right to use and enjoy all that is above
and below this land unless the law provides otherwise. Under Rwandan law however, the
owner of the Land does not have a inalienable right to control what is being done above or
below the ground at such a height or such a depth in which he has no interest of “opposition”
(art.16 (2)).
As a limitation to the rights of ownership, again, the same article provides that the owner of
the soils (Land) has no rights over the water or the substance which could be subject of
concessions under the laws relating to mines. In other words, you cannot claim ownership of
a piece of Land which is rich in minerals and which can be turned to a mine or quarry.
Articles 261 and 262 of the civil code Book III also bring forward another kind of limitation
on the right to use your property despite the freedoms we are entitled to through the
ownership right. The two articles caution us to use our property -animals or objects -
prudently and diligently. Where this is not observed, we, the owners of such property are
answerable to the Law. So, the freedom of using our property the way we like is somewhat
limited.
Laws, rules or instructions often limit peoples’ freedom in the exercise of their ownership
right to the new acquirer of the property. The right to alienation of your property can also be
hampered by a contract already signed over it e.g. mortgage, etc.
As mentioned earlier, the ownership right stays as long as the property itself stays. The mere
fact of alienation of the property does not extinguish the ownership right but rather, a transfer
of ownership from one person to another. However, where this property has been abandoned
(mainly moveable property), and someone else occupies it or takes possession, the new
occupant/possessor may take the ownership right through the acquisitive prescription
established by the law. In this case, it is not a transfer of ownership since the new possessor
cannot tell who the former owner was, for example. before the property was abandoned.
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G. ACQUISITION OF OWNERSHIP THROUGH ACCESSION
1. Definition and general concept of accession
Accession20, in law, means a method of acquiring property (which itself was adopted from
the Roman law), by which, in things that have a close connection with or dependence on one
another, the property of the principle draws after it the property of the accessory, according to
the principle, “accessio cedet principali.”21 The ownership of a thing, whether it be real or
personal (English law), movable or immovable (French law), carries with it the right to all
that the thing produces, and to all that becomes united to it, either naturally or by artificial
means; this is called the right of accession.22 Accession may take place either in a natural
way, such as the growth of fruits or the pregnancy of animals, or in an artificial way as where
a building has been constructed on a given piece of land.23
The French law24 provides the same where it says that ownership of a thing, whether movable
or immovable accords to its owner the right to whatever comes out of it, whether by natural
or by artificial means. Such a right is recognized under French law as the right of accession.25
According to art. 552 of the French civil code, ownership of land goes with the right on what
is under and above it. Notwithstanding some exceptions, this would mean that whatever
would be found under your piece of land, on your land, or above it would automatically
belong to you - the owner of the land. In this case, land is the principle object and so,
following the Latin maxim; accession cedet…, mentioned above, all that is accessory to it
will belong to the owner of the principle.
But what about where no principle object can be identified from the accessories, for example
when there is a mixture of two liquids to produce another, or where the two solids are mixed
up to the extent that you cannot identify the new from the original property (commixtures)? If
we could take Bridge’s26 definition of the term accession, there would necessarily be a
dominant thing to which the other is attached or which ‘swallows’ the accessory, in which
case, the application of the principle; accession cedet… would easily fit. Bridge defines
Accession in the following words;
“accessio is the joining of a subordinate thing to a dominant one, so that the identity of the
subordinate becomes submerged in the dominant.”27
However, it should be noted that, accession takes different forms, some of which are too
complicated to judge what the principle is. These forms include for example, movables to an
20 The word “Accession” etymologically comes from a Latin word, accedo,ere; which means, to go, or to
approach , itself deriving from cedo,ere; go+ ad=towards.
21 http://en.wikipedia.org/wiki/accession;
22 http://www.lectlaw.com/def.htm.
23 http://www.babylon.com/definition/Accession/English.
24 Article 546 of the French Civil code
25 MALAURIE, P., et AYNES, L., Les biens (2004), Paris, Defrenois, p.115.
26 BRIDGE, M., Op. cit., note 1.
27 Ibid., p.106
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immovable (fixtures), movable to movables (specification), liquids to liquids or solids with
other solids (confusion or commixture).28
2. Acquisition of ownership right by accession under Rwandan law
Under Rwandan law, accession can be seen in two aspects; the natural prolongation of your
ownership right and the other, a mode of acquisition. What interests us here is the second
aspect. According to art. 21CCBII, ownership of a thing whether moveable or immoveable
gives the right to all its produces. The article continues to say that, the fruits of a thing, even
if separated from it, continue to belong to the owner of a thing, unless the law provides
otherwise. The following article (art.22 CCBII), stipulates that «ownership of a thing,
whether moveable or immoveable, gives the right to whatever becomes united to or
incorporated to, either in a natural or artificial manner. »
Contrary to the above, art.23 CCB II expressly puts it that the owner of land who made some
construction on his land but used materials that did not belong to him, cannot claim any fruits
from his property save only when he has made the reimbursement of the value that is
equivalent to the material used in the development of his property, the materials which did
not belong to him.
«The owner of the land who has made buildings, works or plantations with materials or
vegetation which do not belong to him, must pay the value there of; he may also be
condemned to pay damages, if there be any, but the proprietor of the materials or the
vegetation has no right to take them away.»
Regarding animals, where the two i.e. a bull and a cow do not belong to the same owner,
what will be produced from their mating will belong to the one who owns the female cow.
The solution here will be given by art.22 CCBII. However, the owner of a bull can claim
some amount of money from the owner of a cow for the bull’s services to the cow but he
cannot claim ownership of the calf to be produced.
3. Accession by incorporation
It should be reminded that, by the term accession, the legislators refer themselves to the
Roman expression «accession cedit principali». The problem with accession is to solve a
conflict of the real rights where two things, belonging to different owners, are united or
incorporated into one.
The solution here is that the one who enjoys the principal or real rights will automatically
enjoy the accessory rights.
Art.24 of CCBII clarifies this by adding that, the one who incorporated the constructions or
other works to the land that is not his, but who did it in good faith and using his materials has
to be reimbursed for the cost of his materials as well as his labour.
28 Op. cit., note 7.
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If the construction was done not in good faith (bad faith), then, the owner of land on which,
for example the house was built (fixed), may ask him or her to remove his/her materials or
construction. This depends on the choice of the owner of the land.
Alluvion: In short, this means the deposit of waters either of a lake or a river. Art.26 CCB II
provides that, «the deposit of earth or left dry that may form on the bank of a lake or a stream
navigable or floatable belongs to the state. The one that is formed on the bank of a lake or a
stream that is not floatable or navigable belongs to the owner of the adjacent land. »
2. Dismemberment of the right of ownership
Dismemberment is the act of transferring or dividing one’s rights or some of them over a
property to another person who is not the owner of that property. Usufruct, use, servitudes,
superficiary and emphyteusis are some of the dismemberments of the right of ownership over
a given property.
A. USUFRUCT
This right combines the two rights embedded in the right of ownership (i.e. usus and fructus).
The usufructuary is a person who has and exercises the right to use and enjoy the fruits from
a property that does not belong to him. The one who exercises this right is however bound by
another obligation of preserving the property’s substance for its owner. It should be noted
that, where the owner did not give the usufruct for commercial purposes, it should be
maintained because if the fruits from it are used for commercial gains, these gains will be for
the real owner of the property. This is in line with the principle that, the usufructuary cannot
gain more than the real owner gains.
B. SERVITUDE
This is the right a person is entitled to on a property (Land) that is not his/hers due to the
circumstances surrounding that property. These include the right of passage through another
person’s land so that he/she may reach his or her own Land, the right to water resources on
another person’s land, or the right to channel the running water through another person’s land
below your own. The right to another person’s land which emanates from the nature of the
terrain is provided for by the law or from mutual agreement between the concerned parties.
C. SUPERFICIES
The Rwandan civil code defines superficie as a right to enjoy an immoveable belonging to
another person and to dispose of all buildings, wooded areas, trees and other types of plants
joined to land. It can be created free of charge or by onerous title (art.76CCII).
On this right, one can be tempted to say that the superficiary behaves totally like the one
having a full ownership of a given property but which is just limited to a given period of time
(not exceeding 50 years).
Article 77CCII stipulates that, superficie can never be established for a term exceeding fifty
years. And if a longer period had been stipulated, it has to be shortened to meet that provision
(a term not exceeding 50 years).
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The superficiary also has the right to enjoy and dispose of buildings, wooded areas, trees and
other types of plants that existed on the same land to which he/she is a superficiary, at the
time his/her right (superficie) began. So, the contract for the superficiary is not only for the
benefit of what will be harvested in future but also the present accessories or immoveables
which are incorporated in or destined to that land (art.79 CCII(3)).
However, as provided for by art.82 CCII, at the termination of his/her right, the superficiary
cannot remove all that belonged to him/her which was either found there, or from the works
of his hands but which are still joined in the land, or even to claim compensation for the
property left on that land. But, as an exception to this, for the constructions he/she has
constructed, though he/she cannot remove them, but at least can claim from the proprietor an
indemnity fixed at three-quarters of their (constructions) actual value.
During this period of superficie, when there is any kind of use made of the property that
affects the rights of the proprietor, the superficiary has a duty to inform the proprietor in
timely manner. This is provided for in order to allow the proprietor to ensure his/her rights
are not abused.
In principle, all superficies have to be registered but the superficies which do not exceed nine
(9) years are not subject to registration (art.85 CCII).
D. EMPHYTENSIS
Emphyteusis is a right just like the superficie which, for a certain period of time, grants to a
person a full benefit and enjoyment of an immoveable property (Land) owned by another
person, provided he/she does not endanger the existence of this immoveable and this carries
with it a right or even an obligation to put constructions, works or plantations thereon and in
due-course, durably, increases the land’s value (art.62CCII).
It should be noted clear that, the duties mentioned above that go hand in hand with the
acquisition of the Emphyteutic right does not in any way exonerate the Emphyteutic leasee
from paying some rent to the real proprietor as agreed upon in their contractual provisions
(normally paid annually).
An Emphyteusis cannot, according to Rwandan law, be established for a term exceeding
ninety-nine years (99 yrs). Where a longer term has been stipulated, it must be shortened and
brought down to meet the ninety-nine years. Within this period of emphyteusis, the
Emphyteuta is free to use and enjoy the immoveable (land) in any way he likes just as any
good owner. He/she can hunt, fish, extract rocks, clay or other similar materials from the
immoveable and can cut down trees for the purposes of building or making improvements on
the property. An Emphyteuta has the right to change the nature and purpose of an
immoveable where he/she wants to increase its value (art.64(3) CCII). Though the
Emphyteutic leasee is free to extract rocks, clay and the like, the law (art. 65 CC.BII) does
not allow him/her to open mines, quarries, and peat bogs which were unopened at the time
his/her emphyteusis was acquired.
As an Emphyteuta, he/she can dispose of his/her right, mortgage or hypothec in the
immoveable or even impose servitudes on this immoveable for the duration of his enjoyment.
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The civil code (art.71 CCBII) provides for the situations where the Emphyteuta can be
deprived of his/her right over the property and instead pay some damages to the real
proprietor. These situations include;
1) Where the Emphyteuta is in default of paying three consecutive annual rents, or even for
any default of payment, if the emphyteuta became bankrupt or insolvent.
2) Where the emphyteuta showed grave negligence in executing his charge of maintenance
and raising the value of the immoveable (Land) and lastly,
3) For any serious abuse of his right of enjoyment.
In as regards to what follows after the termination of the Emphyteutic period, the procedure
and the rules are the same as those for the superficiary, even to what concerns the buildings
and other constructions erected by the emphyteuta.
An Emphyteuta has to be given an emphyteutic title from the state, subject to the application
of art.36 of civil code Book II. The registration of any transfer of property involving
emphyteusis on state land is made by inscription of hypothecs (art.74 (2) CCII).
SECTION 3. OVERVIEW OF THE 2005 ORGANIC LAW ON LAND USE AND
MANAGEMENT IN RWANDA
1. Introduction
The land Use and Management Law seeks to address a number challenges to Rwanda’s land
regulations, including land insecurity, industrialization, and unsustainable plot size. It
emphasizes commercial exploitation through large-scale farms that produce cash corps and
announces a consolidation goal that will force famers with multiple, non adjacent small plot
to merge their holdings with others. It also creates an apparatus for the systematic registration
of all land and for issuing private titles, in a dramatic shift away from the previous system of
state ownership. The 2005 Land Use and Management Law formally abolishes every form
of customary tenure, but especially Ubukonde (article 86). The objective of the law is to
ensure better land management while conferring security on the existing occupants of the
land.
Drafters of the land Use and Management Law were urged to respond to some outstanding
points. Here is a summary:
2. Land categorization in Rwanda
Pursuant to the present law on the management and use of land in Rwanda, land is
categorized in different ways; 1) Urban and Rural land which is defined as that land that is
confined within the boundaries of towns and municipalities as established by the law. It
should be reminded that, after the reform in the administrative structures of 2006, towns and
municipalities exist no more. The law accords to the president a prerogative to issue a
presidential order determining any additional area considered to be urban land and which is
adjacent to the already established urban land.
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2) Individual land is another category. Art.11 of the organic law considers the individual land
to be that land that has been acquired through custom, written law (e.g. through contract or
succession etc.) which excludes public land or that that belongs to any administrative entity.
3) State Land which includes that of public domain which consists of all the land that is
meant to be used by the public or land that is reserved for organs of state services as well as
national land reserved for environmental protection (arts.12 and 13) and that of private
domain of the state which consists all other land that is excluded from that of public domain
(arts. 14 and 15). Such land that falls within the private domain is that state owned land that is
not included in state land that is reserved for public activities, infrastructures, and that land
that does not belong to districts, City of Kigali or to individuals.29 In addition to the different
categories of land that are enlisted under art. 14 of this law, it also goes without mention that
Escheat land30 is also included under this category.
4) District land is that which is meant for the public activities of the District. It should be
noted here that the District can have both the land that falls to the public domain as well as
that of the private domain (arts.17 and 18 respectively).
3. General Principles
A. LAND IS THE COMMON HERITAGE OF PAST, PRESENT AND FUTURE
GENERATION (ARTICLE 3 OF THE LAND LAW)
Land is the most important productive asset owned by most Rwandan households. For this
precious heritage to be sustained, it requires two things in particular. First, everyone has
rights and obligations regarding the land. Second, the State must act to guarantee this heritage
for the benefit of present and future generations. Thus, there is both an individual and a State
responsibility for ensuring that land is properly managed and used. Again this principle relies
heavily on rational management and use of land in favour of the country’s development.
The State is still recognised as having overall responsibility for the proper management of
land, in order to implement its development strategy for the benefit of its people and ensure
their food security. As part of the drive to obtain optimal benefit from this most significant of
the country’s resources, the law specifically requires landowners to cultivate or improve their
property and contains provisions for the State to expropriate land where its owners fail to take
advantage of it and leave it unused for an extended period of time.
B. EQUAL ACCESS TO LAND
In article 4, the land law addresses gender imbalances in customary land tenure confirming
that any form of discrimination in matters of land ownership, including gender
discrimination, is prohibited. The first step in this direction has already been achieved in with
the 1999 Law on Matrimonial Regimes and Succession which allowed women to inherit the
29 Art. 14 of the Organic law on the use and management of land.
30 A piece of land without any person having particular rights over it; whether it was never owned or was
abandoned by its owners for a longer period and it became vacant or it is impossible for an individual to own it.
(art. 2 (9)). Escheats can also be, as the law on succession of December 1999 provides, that land that had been
owned by someone who died intestate and did not have any kin, relatives, or anybody to claim over the land that
is left by the deceased (decujus). Such land after the stipulated period of publicity will become escheat and
owned by the state.
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property of their husbands where previously, it had traditionally passed to the husbands’ heirs
(article 70). Further in the text, the Land law reminds us that only legally married women and
their children can inherit (article 36). More, however, is required – notably, education for the
population as a whole, and the introduction of appropriate administrative procedures to
ensure that these newly acquired rights are disseminated, implemented and respected.
It is nevertheless good to note that the present law opens ownership rights to nationals just as
to foreigners, to physical as to moral persons. The procedure for the authentic acquisition of
ownership (with authentic documents) as the present law suggests is determined by the
Minister having land in his/her attributions.
C. EQUAL PROTECTION OF THE RIGHTS OVER THE LAND ACQUIRED FROM
CUSTOM AND THE RIGHTS ACQUIRED FROM WRITTEN LAW
Even though the 2005 Land Law abolishes every form of customary tenure, it still recognises
rights over land acquired from custom pending the registration thereof. Thus article 7 states
that: ‘This organic law protects equally the rights over the land acquired from custom and the
rights acquired from written law. With regard to law, owners of land acquired from custom
are all persons who inherited the land from their parents, those who acquired it from
competent authorities or those who acquired it through any other means recognized by
national custom whether purchase, gift, exchange and sharing’.
4 . Innovative features of the 2005 land law
A. THE CREATION LAND COMMISSIONS AND LAND BUREAU AT EACH
LEVEL OF ADMINISTRATION
In the process of the acquisition of land, the 2005 Land Law provides for the creation of
national, provincial and district-level land commissions to conduct land regulation. Article 8
requires that at each level of administration, these authoritative bodies include women.
The law provides for the establishment of a land bureau at every district level (art.31) that is
tasked with the land registration exercise. Such a bureau is headed by the Lands officer
whose role can be equated to that of the conservateur des titres foncier in the previous law.
Except for the general ones, other tasks and functioning of the land bureau are supposed to be
determined by the order of the minister having land under his or her attributions, which order
is not in place at the moment.
B. UNIVERSAL REGISTRATION OF LAND
The land law also states that the ‘Registration of land a person owns is obligatory’ (article
30). More specifically, Land Officers will be appointed to ‘keep land registers and issue
certificates approving ownership of land’ (article 31). This is a significant shift away from
the previous land tenureship practice, in which only a fraction of all land was titled. This
universal registration will provide land users with more certain rights and thereby promote
investment of labour and capital in increased productivity, and the sustainable development
and management of land resources. In addition land registration could extend the tax base in
rural areas.
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Article 32 provides for the documents that will have to accompany the application for the
registration of your land. These include those that provide the full identity of the applicant
and expressly indicating his/her marital status. Where it is for the married person whose
matrimonial regime is the community of the property, the full identity of the spouse will also
be required. This is quite logical as this would mean shared ownership of the same property.
The description of the land whose registration is sought is also a prerequisite just as having
justifying documents from the local authorities concerned to prove that the applicant is truly
the owner.
There are various problems attached to the registration of land in Rwanda, among which we
note the following:
a) The population has not yet been sensitized to or educated regarding the registration of their
lands. They have no interest in this exercise since they are convinced, even without the
registration; the land that was given from their forefathers automatically belongs to them.
b) They also claim that the registration exercise itself is not only complicated but especially
the transfer of ownership where one wants to dispose of his/her land. When you sell or give
away a portion of the registered land, it will be necessary to call for the new certificate and
registration of the transfer of this ownership. If the land is not re-registered the ownership
will remain with the one who sold or transferred it. So, such legal complications and
perceived difficulties limit the people’s rush to register.
c) Another problem is the delay in this exercise caused by lack of the technical staff to effect
it.. This is accompanied by lack of suitable and effective equipment to facilitate the exercise,
such as computers, suitable software and other accessories which would otherwise simplify
the work.
d) Last but not the least, is the fear of taxes. A tax is imposed on every immoveable that has
been registered. This tax has to be paid annually and whenever such an immoveable is sold, a
duty or deposit of 6% of the total cost of that immoveable is given to the administrative
authority where this property is located.31 This does not encourage registration. It should
however be noted that, there is an express will by the government to scrap this percentage
and replace it with a flat rate not exceeding 20.000Rwf.
C. CONSOLIDATION AND COMMERCIALISATION OF RURAL LAND
Scattered settlements, lack of land law and policy need a framework for the use and
management of land. Land should be managed by written law and appropriate mechanisms.
The land Use and Management Law grants the state the power to consolidate land ‘to
improve rural land productivity’ and delegates authority to establish procedures for
consolidation to the Ministry of Agriculture (article 20). Articles 61 and 62 impose
productivity requirements on tenants. Article 63 designates ‘the relevant authorities’ as the
promulgators of criteria by which to assess productivity. Articles 73 and 74 confer local and
31 Generally, this should be the district as it used to be in the previous law. However, the tendency of
decentralization and considering the current trend, it is obvious that in a few years such activities and therefore
the charges will be for the sectors since they have already taken over most activities that were previously being
performed by districts.
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national-level officials with authority to impose sanctions on landowners who are not
sufficiently maximizing productivity and to confiscate unexploited land.
These measures indicate a clear policy shift towards commercial exploitation over
subsistence farming. This land consolidation would come down to encouraging increased
production through formation of adjacent plots with similar crops. Nobody will lose their
plots but each person will have the responsibility to register his/her plot separately (see article
20).
Another new issue under this new law is that, one is not that free to “alienate” his piece of
land in any way as he/she may wish. Where one owns a parcel of one or less hectare, he/she
cannot reduce or divide it further (art.20 (3)). In other words, he cannot for example sell any
piece of it save where the parcel was not meant for agricultural purposes. Implicitly, one can
conclude that where that piece of land was meant for settlement purposes for example, sale of
part will not be forbidden. Where the land is meant for agriculture, the owner of land that is
between one and five hectares will only be free to divide his/her land upon authorization from
the land commission at the level of jurisdiction where the land is situated; (Section four of
chapter three (art 31-32) is dedicated to land registration).
D. TRANSFER OF RIGHTS OVER LAND
The land law authorizes landowners to freely transfer rights over the land. Thus ‘Rights’
based on Land may be transferred through different individuals or it may be guaranteed
through succession; it may be guaranteed gratuitously, leased or sold; it may be mortgaged
according to requirements and procedures provided for by ordinary civil law’ (article 34).
However, for the family interest’s sake, final transfer of rights on land by sale, donation or
exchange by a representative of the family requires the prior consent of all other members of
the family who are joint owners of such rights. This consent is indicated by a document
signed or finger printed by the concerned people, and done before a registrar of civil status or
before the registrar of lands of which he or she shall record in his or her registers (articles 35
and 37).
5. Rights and obligations of the landowner
A. NATURE OF RIGHTS OVER LAND
The principle states that every Rwandan should have the right to access land without any
discrimination. However, the right to access the land and the right to own land are very
different. The land law says of ownership over land but when we look at its provisions, we
find that this is not complete ownership (Article 3); one could argue that the real nature of
these rights is that of long-term leases. For example article 5 of the Organic law states that
‘Any person or association with legal personality that owns land either through custom, or
who acquired it from competent authorities or who purchased it are allowed to own it on long
term lease in conformity with provisions of this organic law’. However, ‘ Any person
whether a Rwandan or a foreigner who invested in Rwanda, or an association with legal
personality shall enjoy full rights of ownership of land reserved for residential, industrial,
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commercial, social or cultural and scientific services (article6). Even for this category, the
State retains rights to expropriation (with compensation) due to public interest (article 3).
Under this system, the State retains its ownership of the land but “loans” it to an individual
for an extensive period (For exact term of land leases see articles 6 and 7 of the Presidential
Order N° 30/01 of 29/06/2007 Determining the exact number of years of land lease). This
gives the individual the necessary sense of security to encourage investment in the land but
allows the government more easily to dictate how the land should be used and managed.
Nonetheless, even with long- term leases, come rights which can be sold, exchanged or
mortgaged in much the same way as rights of ownership.
B. SCOPE OF RIGHTS OVER LAND
Rights based on Land may be transferred through different individuals or it may be
guaranteed through succession; it may be guaranteed gratuitously, leased or sold; it may be
mortgaged according to requirements and procedures provided for by ordinary civil law
(article 34). The State recognizes the right to freely own land and shall protect the owner
from being dispossessed of the land whether totally or partially (art.56).
The land law states that ‘all buildings, crops and other works found on land are presumed to
have been performed by the owner of the land using his or her money or otherwise, and are
presumed to be his or hers in case there is no proof to the contrary. However, this does not
prohibit any other person to own buildings, crops or any other works on other persons' land in
procedures provided for by law’ (art. 57) In addition the law entitles any person deprived of
land ownership to receive a fair and prior compensation, such expropriation must be in public
interest, which itself is left to the appreciation of the authorities concerned (whether national
or local authorities) (art. 67).
C. LIMITATIONS OF RIGHTS OVER LAND
The ownership of land under the new organic law governing the management and use of land
in Rwanda is without doubt limited in some respects. First, the landowner has no right over
minerals or any other wealth underground; they belong to the State. However, he or she is
allowed before others to enjoy rights of their exploitation upon his or her request and if he or
she is capable (article 55). Secondly, the landowner(s) shall enjoy full rights to exploit his or
her land without prejudice to laws related to human settlement, general land organization and
use. For example a landowner cannot freely decide to plant trees on a land earmarked for
housing invoking his or her ownership rights or building houses on a land not earmarked for
that purpose (article 54). Thirdly, a landlord shall not hinder underground activities or those
in the space above his or her land when such activities are of general interest. If such
activities cause any loss to him or her, he or she shall always receive appropriate
compensation (article 67). Lastly, the landlord shall not act against other people's rights by
refusing access to his or her neighbours homes when there is not any other way, blocking
water that is naturally flowing through his or her land from other persons' land above his or
hers, or refusing other people to draw water from a well found on his or her land unless he or
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she can prove that such a well has been dug or built by him or her; unless it is considered to
be necessary( article 60).
D. OBLIGATIONS OF THE LANDOWNER
The landowner, as well as any other user of the land is obliged to obey laws and regulations
regarding protection, conservation and better exploitation of the land (article 61).
Assignment, concession and lease contracts shall specify conditions to be fulfilled for the
conservation, and exploitation of the land in accordance with the intended use of the land
(article59).
Landowners shall always respect clauses in the national general land organisation and
utilisation plan (article 66). They also have an obligation to pay land tax determined by a
specific law (article 68). They also have an obligation to register their land (article 30).
6. Prescription term relating to land rights acquisition
Prescription has a particular meaning in the Rwandan context. In general, some acquire land
by prescription if they are the uncontested occupant for a certain period specified by law and
genuinely believe during that period that no one else has any rights to the land, e.g. they
believe it is vacant or voluntarily abandoned. In Rwanda, the notion of acquiring land by
‘’prescription’’ refers to the rights acquired by those who took over the properties of the
Rwandans who fled into exile in 1959 and during the sixties and seventies. The 1993 Arusha
Peace agreement stated that anyone who has been absent from Rwanda for more than ten
years should not reclaim their property if it has been occupied by someone else (Article 4).
This was agreed by the warring parties at that time because they knew that there would be
massive social tension if people who had fled the country decades earlier suddenly returned
and tried to reclaim their properties. However, this provision is quite controversial in law
because it cannot be said that the refugees left their homes voluntarily and relinquished rights
to their property. Moreover because of the occurrence of genocide in 1994, part of provisions
of the Arusha Accords became inoperative. However since 1996 the government addressed
the issue in a way to improving social harmony. Thus in some provinces, it facilitated the
sharing of land between the land occupiers and the returnees. Still a law was needed to
regulate the question.
Accordingly the 2005 Organic Law, “in matters related to land, the right to pursue
landlordships shall be prescribed for thirty (30) years)” (article 70). “Persons, who by force,
or through fraudulent means, occupy vacant and escheat land or other people's land, cannot
invoke the interests of the right to prescription to claim that the right to pursue the land
extincted(sic), prescribed or that they have full ownership, even if they have occupied it for a
period longer than the period of prescription.” (article 71). Persons who own other people's
property, whether borrowed land for use or residential houses found on that land shall not
definitively own the land due to reasons of prescription whatever the length of the period of
time of their occupation (article 72 para. 1). Among the members of the same family, there
shall be no extinction of rights of prescription. If a person disappears, although he or she
spends a long time, at any time he comes back he can pursue his or her rights in accordance
with the family civil code (article 72, para. 2). This provision aims at protecting the family
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interests. The 2005 Land Law recognises land sharing which was conducted from the year
nineteen ninety four (1994) and states that holders of such land shall enjoy the same rights as
those under customary holdings. However, matters related to this sharing of land are not
subject to compensation that is provided for by this organic law (article 87).
7. Penalties
The current law provides for both administrative as well as penal sanctions. Of the
administrative sanctions is the confiscation of the degraded or unexploited land. Such
sanctions will be imposed following the reports that will have been given by the land
commission that will have monitored the use of the land by the owner. The owner will
however, after proving the capacity to exploit the confiscated land, have a right to repossess
this land through a request that will be submitted to the lands commission (art.78). The penal
sanctions on the other hand will include imprisonment as provided for by the penal code and
this law, as well as fines.
8. Settlement of disputes over land rights
Matters arising from land disputes are heard by competent courts and through procedures
provided for by law. Before the matter is taken to the court, the parties to the dispute are
required to seek a solution of the problem from the mediation committee at Sector level. This
concerns the land that has no authentic title deeds (article 53).
Extra-contractual or tort obligations arise from one’s act or omission which causes a damage
to someone or his/her property (for example, from wilful acts or negligence). Extra-
contractual obligations are subdivided into tortuous and quasi-tortuous obligations.
- Example of tortuous liability arising from intentional homicide, voluntary injury, etc. (Art.
258 CC B II);
-Examples of quasi-tortuous (non-intentional) civil liability/obligation results from
negligence, civil action arising from non-intentional homicide (manslaughter), involuntary
injury, etc.

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