“No agreement of wills, no contract”. Consent can be defined as the willingness to commit one’s person or property, or both. This will must be expressed expressly and this expression makes it possible to establish, to materialize the will. One of the ways to establish consent is to write Writing thus makes it possible to materialize the parties' commitment and plays an important role as a mechanism of proof. This article discusses the legal framework for writing in Senegalese law…

Historically, the value given to the given word, was of such importance, that it was sufficient to concretize a commitment between the parties.  The canonists gave special importance to the autonomy of the will. And for an implementation of the autonomy of the will, the respect of the given word was sacred.

From the consecration of the autonomy of the individual will derive the principle of consensualism.  Defined as opposed to formalism, consensualism is the principle that legal acts are not subject to any formal validity requirements.  Although it continues to claim "its weight of gold", applied in an absolute way, the latter can lead to abuses or even legal insecurity.

Formalism, materialized by “the written word”, often pursues a protection objective in that it will allow to draw the attention of the parties to the content of the contract but also to act as proof in the event of a possible dispute.

The written document can be considered as a legal act drawn up by one or more parties in order to materialize the existence of a contractual relationship.

Indeed, in order to strengthen the legal certainty and efficiency of transactions, the Senegalese legislator will make compliance with certain formalities a condition of validity of certain legal acts (these acts will be said solemn) and a condition of proof for other acts.

The solemn contract will therefore be the one whose validity, in addition to the agreement of wills, will presuppose the fulfilment of a particular formality and the intervention of a specific authority whereas for other contracts the drafting of a written document is apprehended as a mode of proof. On the one hand, private authentic acts and private acts will be invoked as a means of framing the contract before returning to the legal value of the written word in Senegalese law.

1- Authentic and private acts, a means of supervising the contractual relationship.

An authentic instrument is an instrument established by a public officer.  The value historically conferred on certain categories of property such as real estate or the gravity of certain events in the lives of persons (marriage, for example) will justify the establishment of a formalism of validity, it will be said that these formalities are required ad validitatem.

For example, contracts relating to the transfer of ownership of registered immovables will have to be concluded before a notary[1].

This requirement of formalism is also recognized as an application in the matter of filiation, so that consent to adoption must be given in Senegalese law by an authentic act either before a justice of the peace , a notary or before Senegalese diplomatic and consular agents.

It may happen for certain categories of transactions that the choice of formalism is left to the discretion of the parties, such is the case of the sale of goodwill whose legal regime is somewhat similar to that dedicated to the sale.  This transfer may be effected either by an authentic instrument or by a private instrument[3].  This choice left to the parties may be justified by the fact that excessive formalism can lead to a certain delay in the progress of the business.

Some parties wishing to avoid any form of future dispute will give priority to the authentic instrument, while others will be content with a private instrument which certainly offers less guarantee in terms of reliability but has the advantage of offering a more pragmatic approach.

The same applies to assignments of claims in a company formed between spouses, which must be valid either as a notarial act or as a private deed.

Unlike the authentic instrument, which requires the intervention of a public official for public policy requirements, the act under private seing will essentially concern the parties to the contract and possibly a third party (in the case of a representative) provided that the latter is not a public officer.

This category of acts, although less restrictive, is nevertheless important because it serves as the materialisation of the parties' commitment.

The legislator in a context of development of business relations wanted to be considerate in imposing the drafting of a written document when a convention would exceed the sum of twenty thousand (20,000) CFA francs.

It might be interesting to question the current economic relevance of this provision, since it is now considered to be rather insignificant. This was certainly not the case at the time when Parliament provided for this provision.

The drafting of an act under private seing to pursue its objective of securing, must also include the signature of the parties under penalty of nullity of the act.

Going further in the interest of protection, the law imposes, in some cases, informative mentions but also what is commonly called the formality of double, which formality ad probationem ,will be required in order to prove both the existence and the content of the act.

2- Legal value recognized in writing.

The interest in carrying out in writing a contractual relationship is relevant where a dispute or dispute arises.

Probative force of the authentic act and the act under private seing.
The authentic instrument is almost perfect evidence.

In reality, the combination of formal requirements such as the date of completion of the act, the affixing of the signature of the parties but also and above all that of the public officer participate in the strengthening of the indisputable character of the authentic act.

It continues to be authentic and can be challenged only for false. [6] This means that the only way to attack the veracity of an authentic document is through the procedure of the false inscription.

The private act, on the other hand, is governed by the principle of simple presumption in so far as it is authentic until the contrary evidence is established.

The recognition of electronic writing.
Far from being reductive and rather avant-garde in its analysis of the evolution of the law, the Senegalese legislator, with a view to adapting the legal arrangements in force to technological change, has incorporated the concept of electronic writing into Senegalese law, giving it the same legal status and probative force as written on paper[7].

Thus, to the classical methods of writing employed in the matter of proof (traditional solemn contracts, authentic instruments, acts under private seing, books of commerce etc.), will be added the electronic written.

At Community level, the Uniform Act on General Commercial Law has also incorporated this numerical data by giving electronic documents legal validity and probationary force equivalent to paper documents[8].

The coming of a uniform act on electronic transactions will promote a better understanding of the legal issues related to digital.

In order to improve the effectiveness of legal relations, it seems obvious that a constant balance must be sought between consensualism and formalism. These two often opposing concepts are in fact complementary and close the loopholes of both.

Legal References: 

Uniform Act on general commercial law.
Code of Civil and Commercial Obligations of Senegal.
Code of the family of Senegal.
Act No 2008.08 of 25 January 2008 on electronic transactions.

[1] Code of Civil and Commercial Obligations, Art. 383.

[2] Family Code, s. 232.

[3] Uniform Act on general commercial law, Art.

[4] Family Code . s, 378.

[5] Cocc, s. 14.

[6] Cocc, s. 18.

[7] Electronic Transactions Act No. 2008.08 of 25 January 2008.

[8] AUDCG, art 82.