Contractual Freedom and Autonomy under the CISG and UNIDROIT Principles as Legislative and Judicial Guidance in Commonwealth Africa

• Author: Coleman, T.E.
• DOI: https://doi.org/10.47348/SAMLJ/v33/i3a1
• Published date: 16 May 2022
• Date: 16 May 2022
• Citation: (2021) 33 SA Merc LJ 319
• Pages: 319-363

Articles

CONTRACTUAL FREEDOM AND

AUTONOMY UNDER THE CISG AND

UNIDROIT PRINCIPLES AS LEGISLATIVE

AND JUDICIAL GUIDANCE IN

COMMONWEALTH AFRICA*

THEOPHILUS EDWIN COLEMAN**

Postdoctoral Research Fellow, University of Johannesburg

Abstract

The idea that contracting parties should be afforded the freedom to

determine the content of their contract and regulate their private legal

arrangements not only advances efficient international trade and

commerce, but also, to a very large extent, affords the parties the

opportunity to mitigate their risks in their transnational commercial

relations. Parties’ risks are mitigated when the basis upon which they

can conclude and enforce their contract is not concealed by

uncertainty. Within the global legal order on transnational

commercial and contract law, parties enter into contracts with the

expectation that the contracts will be enforced by the courts of law.

This article seeks to critically appraise the global stance on contractual

freedom and party autonomy. It ascertains the extent to which the

global approach could serve as legislative and judicial guidance for

Commonwealth African countries. The article suggests that Common-

wealth African countries should accede to or ratify key instruments

*This article is based on aspects of the author’s doctoral dissertation. See Coleman,

Contractual Freedom and Autonomy in Commonwealth Africa: Theoretical Foundations and

Practical Perspectives (unpublished LLD thesis, University of Johannesburg, 2020) 153–199.

** BA (Hons) LLB (Ghana) LLM LLD (UJ), Postdoctoral Research Fellow (PDRF), Centre

for International and Comparative Labour and Social Security Law (CICLASS), Faculty of

Law, University of Johannesburg and Research Associate, Research Centre for Private

International Law in Emerging Countries (RCPILEC), Faculty of Law, University of

Johannesburg. Email: tecoleman@uj.ac.za / edwintheocoleman@gmail.com.

319 https://doi.org/10.47348/SAMLJ/v33/i3a1

(2021) 33 SA Merc LJ 319

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on international commercial and contract law. It further highlights the

economic significance of such accession for businesspeople in

Commonwealth Africa.

Keywords: contractual freedom and autonomy; freedom of contract; party

autonomy; international commercial contracts; global sales law; CISG;

UNIDROIT Principles; Commonwealth Africa

IINTRODUCTION

As private individuals continue to actively participate in transnational

commercial activities, the primary question is: To what extent should

they be afforded the autonomy (both in international and domestic

contracts) to freely arrange their affairs in a manner that promotes their

commercial interests? The idea that contracting parties should be

afforded the freedom to exercise control and determine the content of

their contract not only advances eff‌icient international trade and

commerce, but also, to a very large extent, affords the parties the

opportunity to mitigate their risks in their transnational commercial

relations. Parties’ risks are mitigated when the basis upon which they can

conclude and enforce their contract is not hidden behind the existing

uncertainties.

1

Within the global legal order on transnational commer-

cial and contract law, parties conclude contracts with the expectation

that the contracts will be enforced by the courts.

This article seeks to appraise major international instruments in

international commercial law and ascertain their level of commitment

to the concept of contractual freedom and autonomy. It aims to assess

the global position on freedom of contract and party autonomy in the

United Nations Convention on Contracts for the International Sale of

Goods (‘CISG’ or ‘the Vienna Sales Convention’) of 1980 and the

UNIDROIT Principles on International Commercial Contracts

(‘UPICC’ or ‘UNIDROIT Principles’). The importance of appraising the

global approach to the principle of contractual freedom and autonomy

is to ascertain the extent to which the global approach could inform

legislative and judicial reform for Commonwealth African countries.

2

The appraisal is important, particularly because of the call by academics

1

Sealy & Hooley, Commercial Law: Texts, Cases and Materials (Oxford University Press

2009) 10 and Lith, International Commercial Litigation: Uniform Rules for Contract Disputes

(TMC Asser Press 2009) 8.

2

This article refers to the position on the sale of goods and contract law in the following

Commonwealth African countries: the Republic of South Africa, the Federal Republic of

Nigeria, the Republic of Ghana, the Republic of Kenya, and the United Republic of Tanzania.

https://doi.org/10.47348/SAMLJ/v33/i3a1

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in Africa for African countries to accede to or ratify key international

instruments on international commercial law, and the fact that most of

Africa’s major trading partners are signatories to these international

instruments.

3

This article, among other things, assesses how positive

laws can be used as a tool to aff‌irm the concept of contractual freedom

and autonomy.

The article comprises six main parts. The f‌irst part brief‌ly explains the

concept of party autonomy or freedom of contract in both international

and domestic contract law. This is followed by an appraisal of the scope

and essence of the principle of contractual freedom and autonomy

under the CISG. The third part discusses the operative scope and

signif‌icance of the concept of freedom of contract and party autonomy

under the UNIDROIT Principles of 2016. The fourth part discusses the

current legal regime on the sale of goods and contract law in selected

Commonwealth African countries. The f‌ifth part ascertains the extent to

which the CISG and the UNIDROIT Principles can serve as legislative

and judicial guidance in Commonwealth African countries. The f‌inal

part concludes with a suggestion that Commonwealth African countries

should accede to or ratify the CISG and the UNIDROIT Principles as

such accession or ratif‌ication will be of economic signif‌icance to

businesspeople and private individuals in their commercial and private

dealings.

II PARTY AUTONOMY AND FREEDOM OF CHOICE

Freedom of contract refers to the liberty that individuals have to

voluntarily enter into transactions or agreements with others (state–

individual relationship, or individual–individual contractual relations)

without governmental interference or restriction.

4

The concept mirrors

3

Babington-Ashaye, Bah, Bamlango & Becker, ‘Africa’ (2009) 43(2) The International

Lawyer 969 at 969; Bengone, ‘The Vienna sales convention and Africa’ (2010) 5 Asian Business

Lawyer 95 at 95–96; Coetzee, ‘CISG and regional sales law: Friends or foes?’ (2015) 2(2)

Journal of Law, Society and Development 29 at 29–30 and Wethmar-Lemmer, ‘Regional

harmonization of international sales law via accession to the CISG and the importance of

uniform interpretation of the CISG’ (2014) 47(2) De Jure 298 at 298.

4

Pound, ‘Liberty of contract’ (1909) 18(7) Yale Law Journal 454 at 454; Williston,

‘Freedom of contract’ (1920–1921) 6(4) Cornell Law Quarterly 365 at 365; Marshall, ‘Freedom

of contract’ (1913) 33(6) Canadian Law Times 542 at 542; Knowlton, ‘Freedom of contract’

(1904–1905) 3(8) Michigan Law Review 619 at 619; Smith ‘Future freedom and freedom of

contract’ (1996) 59(2) Modern Law Review 167 at 167; Cohen, ‘The basis of contract’ in

Epstein (ed), Contract – Freedom and Restraint (Routledge 2011) 1–39; Cserne, Freedom of

Contract and Paternalism: Prospects and Limits of an Economic Approach (Palgrave Macmillan

2012) 1–2; Penner, ‘Voluntary obligations and the scope of the law of contract’ (1996) 2(4)

Legal Theory 325 at 326 and Collins, The Law of Contract (LexisNexis 2003) 107.

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