COURSE ON COMMERCIAL CONTRACTS

Professor NYEMBO

With modernity, it is easier to acquire through contractual means. All agents

economic1use contractual processes (methods) to carry out certain transactions. The
contractual method is thus used both to facilitate exchanges and to carry out in a way
professional some actions only to facilitate financing.

The objective of this teaching is therefore to enable mastery of some of the most common contracts.
used in the business world. It will therefore be a matter of reviewing and understanding the
contracts named that the business world most often uses to better finance the
socioeconomic development.

In this context, the teaching will be addressed in three parts, namely:

Title I. Trade facilitation agreements. The discussion will be about:

From commercial sale;

Of the transport contract.

Title II. Contracts made by commercial intermediaries. It concerns:

or a commission contract;
or brokerage contract;
or exclusive concession contract;
Agency contract.

Title III. Financing facilitation contracts. The following are referred to:

The lease or leasing;

Subcontracting.

1
Household or individuals, businesses, the State and foreign (external)
 Course notes on Commercial Contracts (special) 2

Title I. TRADE FACILITATION CONTRACTS

It should be noted that to facilitate exchanges between individuals, between individuals and the State as well
Among the States, sales and transport contracts are the most used.

Chapter One. COMMERCIAL SALE

Commercial sale is a contract named in the same way as civil sale, but with
derogatory prerogatives to common law. In this regard, in addition to the validity conditions of any
A commercial sale follows certain specificities required by business.

Section 1. Definition and functions of commercial sales

Commercial sales are organized by the Uniform Act of December 15, 2010 relating to the law
general commercial. Its scope of application is clearly limited, but also broader than
the other contracts. It is limited because:

The legal provisions apply only to the merchants party to the contract.
The object of the contract must be a good, either movable or immovable, excluding
intangible assets;
The questions addressed there are not only resolved by common law, but
also by some special provisions.

The scope is also broad for the following reasons:

The provisions applicable to this contract may be applied to contracts of the same nature;
The application of a provision is not limited solely to the sale, but also to
any form of supply of goods and services.

Commercial sales are thus the quintessential instrument of exchanges.

generations and around the world. The provisions of commercial sale apply to the contract
for the supply of goods in which the predominant obligation rests with the party that
provides the said goods. However, auctions and the sale of items are excluded.
such as the sale of electricity, etc.

Commercial sales carry out the distribution as they ensure the flow of goods.
products at different stages of the economic circuit. Commercial selling is of various kinds. This
the plurality of species of sales does not contradict the principle of the uniqueness of commercial sales
regarding the civil sale.

It is defined as the contract by which the seller transfers the ownership of an asset to
the buyer in exchange for payment and the buyer agrees to ensure.2

Section 2. The formation of the commercial sales contract

For the formation of the commercial sales contract, it is necessary to have the agreement of
parties, the existence of the merchandise that is the object of the sale as well as the payment of the price. Regarding
The agreement of the parties requires that mutual consent be exchanged.

2
The sale is said to be commercial if both parties are merchants.
 Notes on Commercial Contracts (special) 3

Indeed, the sales offer is most often impersonal and for an indefinite duration. It
It is indicated that the interested person, the buyer, accepts the published offer. The acceptance of
the buyer manifests (is formed) by the fact that the refusal to purchase has not reached the seller. It
receives, on the other hand, proposals regarding the delivery methods of the goods and the
payment of the price by the buyer.

However, the situation is complex when acceptance is accompanied by a condition.

resolutory or suspensive. In this case, consent is assumed to be fully expressed when the
the specified condition has not occurred. The same applies when the sale must be preceded by a trial.
The trial sale is presumed to be under a suspensive condition. That is to say, the buyer reserves the
possibility to withdraw consent after testing the goods in order to assess whether they suit him
convenient.

The trial clause must be explicitly stated.3This is often the case during the sale
machines, electronic tools, engines, equipment to the point that a delay is often
awarded to the buyer before the effective conclusion of the contract.

It should be noted that this situation of returning on consent can also occur in
a case of door-to-door sales. In this case, the buyer can withdraw their consent by
renouncing the purchase order (commitment) by registered letter with acknowledgment of receipt
within the required timeframe. This timeframe is often seven (7) days, in order to allow the seller to take
the necessary provisions for the continuation or not of the contract.

It should be noted, however, that the sale cannot be revoked if it indicates a period within.
of which it is irrevocable. It is necessary for the buyer to be aware of the clauses of the contract.
in order to engage with full knowledge. Therefore, if an acceptance contains additions and
limitations and other modifications, it amounts to a rejection of the offer and constitutes a counter-proposal.

The acceptance will remain supplementary if it does not substantially alter the terms of
the author of the offer, unless he expresses his disagreement on these elements. Furthermore, the
parties are free to negotiate and cannot be held responsible if they fail
not to an agreement.

The commercial sales contract is supposed to have obtained the acceptance of two parties and is
proven by all means of law, unless the parties provide otherwise. The writing is all of
even necessary to serve as evidence in important matters; even if this writing can
intervene after the verbal agreement. It is within this framework that the delivery of the accepted invoice by
the buyer is an obligation of the merchant.

The merchandise is the object of the contract. As such, it must meet the conditions required by
the buyer as presented by the seller at the time of the offer. The merchandise must
thus:

Being in commerce;
To be determined; i.e., a tangible asset known, identified with characteristics.
acceptable;
She must exist.

3
The one that allows the buyer to withdraw their consent or to proceed with the replacement of the purchased item.
cases where this posed a problem. This is commonly referred to as a guarantee.
 Course notes on Commercial Contracts (special) 4

Indeed, one cannot offer something future for sale. It is necessary, even if it is about the
commerce, that the good which exists or is capable of existing.

Example: A company like Boeing can offer for sale an aircraft that is in production.
the goods must be free from defects that would prevent their use.

Must meet the need for security to the extent that the consumer must be protected and
The state must eliminate dangerous products from the business world (market).

As for the price, it should be noted that the buyer who accepts the offer to sell a good must ...
pay the price. Indeed, the price is negotiable and is left to the arbitration of the parties to the contract. For
for certain goods, the price is determined by a third party whose expertise and
Technicalities have been proven. This is the case for the price of capital on a financial market in the stock exchange.
and a security value that is set by the brokerage firm after comparing different
proposals of the widest possible opinion.

The price can be paid immediately upon delivery. However, the price that is
determined or to be determined must remain lawful in this matter where the principle is the freedom of the parties.
When the price exceeds reasonable limits, it requires repair. The victim must be
compensated. Therefore, the price must be one that a good father of the family can accept.

However, the price should not be confused with the rate. The latter is the set of prices.
staggered considering not only the value of the merchandise and the profit margin,
but also the quality of the server, the point of sale, hygienic conditions, and safety of the
place.

Section 3. The effects of the sale

As soon as there is agreement between the parties on a specific object and on the price, there is a transfer of
property. This transfer takes place immediately even before the payment of the price according to the agreement
between parties. However, the nature of the goods may not be immediately transferred.
This is the case for goods that require prior individualization, counting or their
Measurement. The transfer of ownership and risk also occurs thereafter regarding
goods that require their transport and a time for their availability of
the buyer.

Furthermore, the contract may include a clause anticipating the transfer of ownership. This
the clause must be in the interest of the buyer. Thus, in the event of the seller's bankruptcy, the buyer does not
will not be a simple creditor, but rather a privileged creditor.

Similarly, the parties may delay the transfer of ownership in the interest of the seller.
In this case, it is assumed that the seller has granted credit to the buyer by allowing a delay of
payment.

The parties to the contract undertake in accordance with the provisions of article 280 CCL III.
Specifically, if the buyer must pay the price, the seller must deliver the goods within the deadline.
(conditions) agreed. Failure to comply with this obligation is penalized both civilly and
Criminal. The victim can obtain compensation for the damage suffered and/or the termination of the contract.
 Course notes on Commercial Contracts (special) 5

Chapter Two. THE TRANSPORT CONTRACT

The transport contract is a named, bilateral, consensual contract that is for a fee.
For its validity, it is necessary to fulfill, in addition to the common law conditions, those that require the
movement of a person or goods from one place to another. It is governed by the decree of
January 19, 1920 on the commissioner and the carrier as well as the decree of March 20, 1931 related
the responsibility of the carrier.

The uniform act of March 22, 2003 defines it as any contract by which a person
physical or moral engages mainly and for a fee to move a person
or a good from one place to another.

This contract cannot be conceived without payment of the price. The carrier is bound to a
obligation of result, as it must deliver the person or the goods to the destination.
From then on, the client can only execute upon arrival at the destination or upon delivery of the goods.
as is.

The merchandise is received indicating that it has been received in the conditions
requirements. Therefore, the deterioration of the goods by road engages the responsibility of
carrier, the sender, the sender having the right to refuse its receipt and demand the
repair. This presumption of the carrier's liability does not apply when it is proven that
the facts he is being accused of are the fault of the recipient or a case of force majeure.4

However, the recipient must verify, before receiving the goods, that they are
arrival in the conditions of its loading (boarding).5In case he notices that the
merchandise did not arrive in good condition, there is a period of fifteen days to proceed in writing to
claims. The sender has a period of one year to make their claims; of three years
time frame when fraud or any similar event is demonstrated. In this matter, any action
Judicial matters are prescribed within two years.

For the security of the transport contract, the bill of lading must mention:

The place and date of loading;

The name and address of the sender;
The name and address of the recipient;
The name and address of the carrier;
The means of transport;
The nature of the weight or the contents of the objects to be transported;
The number and specific brand of the packages;
The transport time and price;
The regulatory conditions referred to by the parties.

The transport contract is evidenced by the bill of lading or the waybill.

mainly, even if it can be proven by any legal means. It is advisable to prove by
written to establish liability in case of dispute. The transportation contract must necessarily be
to have the following three elements:

4
The carrier is presumed liable because it is a manager, a professional; that is to say, it is supposed to master everything.
the obligations for the execution of the transport.
5
In case of a complaint, it is stated in the bill of lading that the goods will be received by Mr. so-and-so, at such-and-such.
address.
 Course notes on Commercial Contracts (special) 6

the movement;
the remuneration
the mastery of transport.

It is in this context that it is desirable for the carrier to be a legal entity.

 Course notes on Commercial Contracts (special) 7

Title II. THE CONTRACTS MADE BY THE INTERMEDIARIES OF

COMMERCE

Some contracts require more technicality, more expertise, more knowledge of

trade, to the point that anyone interested cannot make it their activity without having gathered a good
number of conditions. Thus, better-equipped individuals can act on behalf of and for the account
other people in their business activities.

An intermediary is a natural or legal person who has the power to act, intends to act.
usually or professionally on behalf of another person, whether a merchant or not,
in order to conclude a legal act of a commercial nature with a third party. As a result, the intermediary
Commerce is a trader governed by the uniform act related to general commercial law.

In the DRC, before the accession to OHADA, the commission contract was organized by the decree
of January 19, 1920, relating to the commissioner and the carrier. The commercial intermediary is
thus a representative to whom the specific provisions concerning business are applied.

In this regard, the intermediary is required to personally execute, unless the agreement
To dispose otherwise, to execute the mandate contract that binds him to the principal, to the ordering party.
He is presumed responsible towards the person he represents (the represented). His mandate can
come to an end

By the agreement between the represented and the intermediary;

By the complete execution of the operation for which the power was granted to him;
By revocation at the initiative;
By the renunciation of the intermediary.

The intermediary cannot act beyond the authority that has been granted to them by the person.
that he represents, except with his express permission. When he has incurred costs and expenses, he represents
must provide him with assistance. However, he is obliged to inform the represented party before any commitment.
 Course notes on Commercial Contracts (special) 8

Chapter One. THE COMMISSION CONTRACT

A commercial or industrial company that sees its expansion increase cannot

to dare to act herself to deal with all her clients and suppliers. It becomes necessary to
resort to professionals in order to protect oneself against the uncertainties of the business world.
A commission agent is one of the best professionals capable of providing good services to anyone.
interested merchant.

Section 1. Definition and concepts

The Congolese legislator has not defined the commission contract. It merely defines the
mission of the commissioner. Indeed, the commissioner is the one who acts in his own name or
under a social name6on behalf of the principal. He thus executes the commission contract which is
understood as the one by which the agent carries out one or more transactions in his
name, but on behalf of another person or someone else.

The commission agent is thus a professional who, in exchange for payment of a

commission is responsible for concluding any legal act in its name, but on behalf of
committing person who gives him mandate.

As a result, the agent commits personally to the third parties with whom he
7
treat. The commission contract is not presumed, it must be written. The required written form allows for
to limit the power granted to the commissioner. In this way, their responsibility will be established
whenever he acts beyond the power that has been conferred upon him.

Section 2. The obligations of the agent and the principal

The agent is required to personally conclude the transaction that has been entrusted to him by the
principal. If he has delegated to another person, the principal may or may not take on
account for the said operation.8The agent must also follow the instructions that have been
data provided by the principal. However, if these instructions are for guidance only, he may act according to the
rules of the art in order to carry out the operation entrusted to him.

In this context, the agent must act in the best interests of the principal.
a commissioner, given the demands of his profession, cannot be a merchant of
circumstance, someone who occasionally performs tasks on behalf of others.
It must be a professional, someone who has chosen this profession as a means of livelihood.

The commission agent's final obligation is to communicate to the principal all the
information he has on the market situation during the execution of the contract. Once the
mission completed, he must report to the commissioner.

From all of the above, it should be noted that the agent must be registered with the RCCM.
This is why his responsibility is assessed rigorously by the courts as well.
because his work is considered to be that of an employee representative.9

6
A company.
7
Because he acts personally based on the mandate he has received.
8
Because he can assume that it will be poorly done. The commissioner must inform the client.
9
He has a heavy responsibility because he is a professional.
 Course notes on Commercial Contracts (special) 9

As for the principal, he is required to pay the commission agent the remuneration.
(the commission). The principal must pay this remuneration and the commission agent.
has executed. He can refuse to pay when the agent has not executed according to the
rules of the art and in accordance with the instructions received.

Furthermore, he cannot pay if it turns out that the agent refunded the surplus of
fees when he processed the transaction under more favorable conditions.10Otherwise, it can
pay the remuneration and take legal action for breach of trust against the agent.
Moreover, the agent loses all right to commission if he has committed an act of
bad faith towards the principal.

This is the case, for example, when he indicated to the principal a price higher than that of
the one for purchase or lower than that of the sale;

Aside from the payment of the commission, the principal also has an obligation to
reimburse the expenses incurred by the agent for the execution of his mission. In this capacity, the
the commissioner benefits from the privilege in guarantee of his rights to the extent that he is, in relation to the
committing, a privileged creditor.

It should be noted that the privileged claim includes the principal along with the interest.
commission and various fees. This guarantee encumbers all goods that have been transported
thanks to the work of the commissioner and for these goods to be deposited or consigned between
his hands or whether they are still in the hands of a third party.

The broker takes advantage of his privilege to get paid accordingly, unless
a case of force majeure prevents him.

10
A price lower than the agreed one.
 Commercial Contracts (Special) Course Notes 10

Chapter two. THE BROKERAGE CONTRACT

Like for the commission, brokerage intervenes in various sectors of life.

economic and for all types of operations. In this teaching, only brokerage of
merchandise is addressed. It consists of bringing the supplier closer to the buyers in order to their
to allow the conclusion of the sales contract.

The broker is a professional who connects people in order to facilitate or

bring about the conclusion of the agreements between them. As a result, the broker must remain independent.
of the parties. He must limit his activities to connecting people who want to contract and to
the organization of steps aimed at facilitating the agreement between them.

Thus, the broker is responsible for the harm resulting from his false statements which
were made with a view to bringing a party to contract.

As for obligations, the broker is obliged to:

To carry out the necessary steps and diligence to find a co-contractor.

domain of order; finding a buyer when he behaves as a seller;
Provide each party with accurate and complete information about the operation.
to accomplish, particularly regarding the price, the timeframe, and the terms of the execution of
this operation;
Refrain from intervening personally in an agreement without the consent of the parties;
Provide the necessary information for their free and informed consent as well as everything that is
designed to facilitate the conclusion of the contract;
Report to the contracting authority.

The client, on the other hand, is required to:

To conclude whether he has made a firm offer;

Pay the broker.

This compensation is called brokerage. In principle, both parties are liable for it.
to pay
 Course notes on Commercial Contracts (special) 11

Chapter Three. THE EXCLUSIVE CONCESSION CONTRACT

To facilitate the distribution of products and goods, the producer gives mandate to
professionals who carry out certain commercial operations for their own account.

The exclusive concession contract is an agreement binding a supplier to a number

limited to the merchants to whom he reserves the sale of a product on the condition that they meet
certain conditions (obligations).

This contract allows for the establishment of a distribution network and seeks to achieve a
economic integration between the main firm (the grantor) and the members of the network (the
dealers). This contract nevertheless preserves the legal independence of the dealers.
The exclusive concession contract consists of three essential elements that give it a
originality and give it coherence.

The concession is therefore a contract that involves a buying activity for resale.
of a supply exclusivity and a procurement exclusivity. In other words, the
the dealership commits to selling only the goods it has purchased from such
granting to the company x.

The concession contract thus allows for the consumption of products whose quality is
certified and the known price of the producer. It is through these techniques that in organized countries the
Purchasing center allows mapping a city, a municipality, a province, or a country in terms of
concerning the supply of goods. In this way, we can identify the neighborhood, the place where the
the consumer can supply themselves with such product or merchandise.

The exclusive dealer is neither an employee of the grantor nor their .

still his broker. He is an independent trader who purchases products from his
grantors with a view to reselling them to his own clients. He is compensated by a profit margin,
not by a commission.

However, even if some retail sale prices are set by the licensor itself
even these rates are only the ceiling, the maximum that the dealer commits to never
to exceed.

It should be noted that the concession contract with an exclusivity clause allows for
dealer to reduce the price offered by the grantor and maintain its independence in this regard
concerning the establishment of the final price.

Section 1. The formation of the contract

The exclusive concession contract is formed by the sole will of the parties. The latter
can record their agreements in a written document that defines the mutual commitments. They specify
the nature of the distributed product, the extent of the allocated territory and its exclusivity, the standards of
distribution that the dealer must comply with, the obligations regarding training of
employees and those related to the organization concerning after-sales service that can be
carried out directly by the grantor to the reserved clientele, the conditions for renewal of the
simulated fixed-term contract, the causes and consequences of the termination of the simulated contract
fixed-term.
 Course notes on Commercial Contracts (special) 12

Section 2. The execution of the contract

This contract depends, for its execution, on a number of obligations arising from certain
rights and parties. In practice, its rights and obligations are arranged in the agreement in
function of the nature of the products to be distributed, the stage of distribution, and also the means
techniques to be employed by the dealer.

Regarding the dealer, he has the following obligations:

The right to freely set the price to be applied to the clientele. In other words, the grantor does not
cannot impose the minimum price on him to face the competition;
The right to resell the products covered by the concession to any category of buyers who
appear on the granted territory; the grantor cannot in any way prohibit him
to sell to one category or another, or to limit the purchase of products to
well-known categories.

Regarding the dealer, the following obligations can be retained:

Only source from the grantor;

Achieve sales targets of certain quotas;
Hold a minimum stock of products and spare parts to meet the needs
from the clientele. In other words, do everything to ensure that there are no stock shortages;
Have a sales establishment and staff that meet the standards set by the
grantor;
Ensure after-sales services;
Communicate to the grantor the file of its clientele.

As for the grantor, he has the right to control the concessionaire's business on
the technical and commercial plan. This leads to control over the methods and means used
to sell the merchandise. Similarly, the licensor has the right to exercise control over the management
accounting and financial of the dealer11.

As for the obligations, the grantor must:

Regularly provide the granted goods at the agreed prices and conditions that the
dealer ordered;
Refrain from competing with the dealer12;
Distribute a general advertisement about its products;
Refrain from delivering your products to other retailers.

From all of the above, it should be noted that the breach of contract can occur when the
the conditions that led to its conclusion no longer exist. Likewise, he can intervene upon arrival.
of the term when it was for a fixed duration.

Moreover, it can be pronounced when one of the parties no longer respects its obligations.
Engagements. It may finally intervene in the event of the legal disappearance of the grantor.

11
To prevent the company from going bankrupt.
12
He cannot behave in a way that prevents the dealer from functioning properly.
 Course notes on Commercial Contracts (special) 13

Chapter four. THE AGENCY CONTRACT

Section 1. Notions

Unlike the commission contract, in the commercial agency contract, the agent
The commercial acts in the name and on behalf of its principal. It is a professional agent.
permanently tasked with negotiating and possibly concluding sales contracts,
purchase, rental, or provision of services.

The mandate contract is thus the foundation with, however, the objective of achieving a
commercial action. The commercial agent and his principal conclude the contract with interest
common of the parties. As a result, they are bound to each other by a duty of loyalty and a
duty of information. Thus, the commercial agent must execute his mandate as a good professional, i.e.
avoiding any potential error. This requires the principal to appoint a commercial agent in
measure to execute his mandate. The commercial agent has the status of a representative who practices his profession
in complete independence and on a permanent basis.

From the above, the following characteristics emerge:

As a representative, the commercial agent possesses the clientele, receives orders, and carries out
the orders, concludes the service provision contract on behalf of and for the account of
industries, commercial enterprises and other commercial agents;
The profession must be exercised continuously so that the activity of the commercial agent
is part of the long term and concerns numerous operations. Thus, cannot be qualified
a commercial agent is an agent who does not prefer targeted business;
The practice of the profession must be the only means of substance for this fact. It cannot be.
accept the representation of a competing company to that of its principal, unless agreed
of the latter. Independence grants the commercial agent the right to organize their activity.
as he wishes. Hence, the commercial agent is a business owner who issues his
decisions.

Section 2. Remuneration

The agent receives a commission that varies according to the number and value of the transactions.
executed. The agency contract must clearly indicate the method of calculating the said commission.
Without this, it resorts to the usual practices in the matter, most often the commission rate.

In practice, the commission rate is set based on the category of services.

of the volume of business handled regarding dispersion and quality.

Section 3. End of the contract

If the contract is for a fixed term, it ends with the arrival of the term. If it is for an indefinite duration...
indeterminate, it can end at the will of the parties or in case of serious misconduct or also in
case of force majeure. When it comes to termination at the initiative of one of the parties, it is
It is necessary that a notice period be granted for a reasonable time.

From all of the above, it should be noted that the agency contract is a consensual contract that
obeys the principle of the autonomy of will.
 Course notes on Commercial Contracts (special) 14

Title III. FINANCING FACILITATION CONTRACTS

In the execution of business, intervention by a third party may be necessary.

without which the achievement, the acquisition of goods and services are hypothetical. Some
activities require considerable capital that the interested person may not have available, the
turning to a financier seems to be the only option to get out of this. In this case, we can do
appeal to leasing, to subcontracting and in a certain way to the franchise agreement.

Chapter One. LEASE OR LEASING

Section 1.Notion

Leasing is an invention of the USA to solve the difficulties of acquisition.

goods, problems arising from the inability to finance them personally. The existence of this
The financing formula for investments dates back to the 1980s with the arrival of
companies finances in the USA.

Indeed, if an entrepreneur decides to rent the machines they need instead of buying them
to buy, the financing problem does not arise for him, as it is borne by someone else.
Leasing is a medium-term rental of equipment that allows those who do not have
no sufficient resources to acquire the said goods, to dispose of them within the required time
as if he owned it.

Thus, we address a specialized organization that, after studying the file, purchases the property.
desired and rents it out to people who request it. The lease is classified among the
specialized operations in that it gives the opportunity to those who have the initiative, but without means
sufficient financiers to acquire the asset without the burden of the price being felt.

Leasing is different from a sale with retention of title, from the sale to
credit or installment as it is:

A guarantee for the borrower who enjoys the leased property for a time by providing it to the
the creditor's arrangement of the promise to pay the price at agreed periods;
It allows the lessor to receive certain rental amounts with the possibility
to acquire the property at a residual price when the borrower has not terminated the contract;
In this contract, the borrower has the option to purchase the leased asset at the second period of
leasing contract without being obliged. Leasing is thus an important acquisition tool.
movable and immovable property desired by the entire population without this latter
depends on the acquisition of the total price. Thus, to terminate the leasing agreement
the 1erathe contract period that usually lasts from 4 to 5 years is called a locked contract, meaning
non-cancellable and the possibility of termination of the contract may occur at the 2 emeperiod that
usually lasts between 3 and 8 years.

Leasing is organized in the DRC by law No. 15/003 of 12/02/2015. Thus, the uniform act of
OHADA related to general commercial law established it as a financing mechanism
Member States.
 Course notes on Commercial Contracts (special) 15

Section 2. Constitutive elements

The lease involves 3 parties: the tenant (credit taker), the lessor (credit provider)
(lender) and a specialized financial institution. It involves the juxtaposition of two contracts: the
the first between the tenant and the landlord and the second between the landlord, the financier, and the tenant.

In practice, the tenant approaches the financier by specifying the property they desire and for
for which he has no means of acquisition. The financier in turn addresses the manufacturer by him
presenting the tenant's request as well as the guarantee to pay or facilitate the payment of the price
by the tenant, the financier also takes care to have the contract signed between him and the two parties
as well as between the two parties.

In his intervention, he ensures the acquisition of goods by the tenant and to the landlord the
payment of the price. However, the payment of the price is made in agreed installments while the property
Leased is determined at the tenant's disposal. The lease cannot be conceived for a short
duration of less than one year. Thus, the assimilation of leasing to credit in accordance with the provisions
of article 7 of law n°003/2002 of February 2, 2002 concerning the activity and control of
Credit institutions is a big mistake.

Section 3. Lease category

Leasing can be movable or immovable depending on the nature of the rented property.
in fact, the furniture leasing is the one in which the lessor commits to make available to the
Tenant a movable property, equipment in accordance with the indication in exchange for agreed rents.

Real estate leasing is one in which a company commits to either purchasing,

either to arrange or to build a building according to the estimate and the plan proposed by the user
who will pay the price under the agreed conditions.

It should be noted that the leasing must be registered with the RCCM of the jurisdiction.
place where it takes place. Leasing is a method that facilitates financing in an economy, and
this fact, of socioeconomic development.

In conclusion, it is necessary for the landlord to deliver the property in good working condition, ensures
his maintenance during the period of use and ensures peaceful enjoyment of the rented property and
subscribe if necessary to an insurance policy to cover the rented property against any unforeseen events to which it may be subject
may be exposed. Under these conditions, leasing can intervene or assist any person
interested as long as she can inspire confidence through their financial situation.
 Course notes on Commercial Contracts (special) 16

Chapter Two. THE SUBCONTRACTING AGREEMENT

This contract was introduced in the DRC by law n°17/001 of February 8, 2017 setting the rules
applicable to subcontracting in the private sector.

Section 1. Definition and characteristics of the subcontracting contract

Subcontracting is an operation (activity) carried out by a company called a subcontractor.

on behalf of another company referred to as the principal, an activity that contributes to the achievement of
the main activity of this company. It consists of mechanisms enabling the execution of one or
several services of the main contractor's contract.

It should be emphasized that subcontracting is an operation whereby a company entrusts to

another aspect of executing for her and according to a specifications document, according to a certain number of
conditions of production and service acts for which it retains economic responsibility
finale.

It can also be a contract for which a mutual company requests a

another company is required to produce a part of its production or its necessary components for
its production. Thus, the subcontracting contract differs from a simple supplier in that
regarding the work to be done.

Indeed, the subcontractor manufactures a product designed by the client or most often
by mutual agreement with him. The beneficiary of the exclusive contract appears here as a sub-
a manufacturer not being just a supplier. The subcontractor is a contractor who, under the
Under the direction of a principal entrepreneur, commits to carry out work in subcontracting.

The subcontracting contract thus allows the subcontractor to have

outlets without having the obligation to pay directly beforehand as far as it is
recognized a right to be paid by the project owner or to take legal action for payment against
the main contractor. This contract is also a contractual agreement for compensation. However,
It is acceptable that he proves it by any legal means.

In the DRC, subcontracting is reserved exclusively for Congolese (companies established by the
Congolese) regardless of their legal form as long as the registered office is established in the DRC.
The objective sought is to encourage an entrepreneurial mindset.
entrepreneurship aimed at creating a middle class.

With subcontracting, it is possible to obtain flexibility of goods and services with ease.
services at a good price evolving around the control of the main company. The subcontracting company
can produce quality goods at a lower cost and achieve their marketing to
main company costs.

The subcontracting contract is better recommended in the field of transport, of the industry.
automotive, catering in corporate services and in the IT field.
 Lecture notes on Commercial Contracts (special) 17

Section 2. Types of subcontracting

There are several types of subcontracting, including:

Capacity outsourcing

In this case, the main company hires a subcontractor to strengthen its team.
in order to fulfill its orders on time or to cope with the orders
additional.

The outsourcing of contracts

It concerns an operation by which the main company holding a contract

resorts to another company for the execution of certain contractual obligations of the contracts.

Specialized subcontracting

It is an operation by which a company has a product manufactured by another.

the company believes it does not have the necessary skills, the required knowledge to
responding to customer demand.

Chain subcontracting

It is the one by which the subcontractor has full power allowing him to act to become
the client itself or the main company.

Subcontracting is therefore valid when it is registered with the RCCM and especially when its
the holder possesses a national identification, a tax number. Furthermore, the subcontractor must
to be affiliated with a social security organization. Thus, the practice of subcontracting must be
encouraged even if the initiative to undertake is the work of foreigners.

The subcontracting contract must include the following elements:

The agreement that defines the contractual obligations;

The specifications that indicate the clauses, the operating conditions as well as the
rights and obligations distributed in the execution of the work;
The annexes that contain all the attachments to the agreement or the specifications
charges.13

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End of the course

Bronze serpent

13
How many subcontracting companies have been created and how many have been operating from 2017 to the present?