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Case-law based analysis of contractual unpredictability under rwandan law

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par Octave NGENZI
National University of Rwanda - Bachelor of Law 2011

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The good faith ensures in the performance of contract, compliance with the mutual expectations of contractors and makes sure in some contracts, the implementation of collaboration and solidarity necessary to achieve the objectives set out from the contractual economy.

Consideration may be given to the main problems of applying the concept of contractual unpredictability namely non-imputability and the unpredictability of circumstances and their effects, the distribution of contractual risk, the determination of the economy of the contract and the radical change of the obligation assumed.

First, the new circumstances and their effect on the contract should not be attributed to the party invoking the disruption of the economy of the contract.

The new circumstances should, in principle, be of a supra-individual i.e. beyond the control of any party. In addition, the contractor's simple act is not enough to establish imputability. The latter implies the violation of specific contractual obligations or general obligation of diligence.

If an event imputable to the contractor has competed with a fault to a radical change of the obligation assumed, the contractor may invoke contractual unpredictability to the extent where the latter results from this new event.

Concerning the problem of the unpredictability of circumstances and their effects, we believe that the unpredictability must be an element of appreciation of risk.

The contractor shall bear the expenses resulting from a change in circumstances which he could assess the impact on conclusion of the contract. However, it is not always possible to insert a clause relating to the change of circumstances, we think of certain adhesion contracts where the economic


superiority of one party prevents the other to make any changes to terms of the agreement.

It is on the essence of the contract that the parties must bear the change in circumstances affecting their contractual benefits. This is the first rule of distribution of risks.

The attribution of burdens arising from new circumstances will be determined also by the contractual terms, their interpretation, qualification of the contract which allows to discover its nature and therefore the rules of law or jurisprudence of risk sharing that govern them. Usage and equity are subsidiary sources for determining risk.

It is still necessary to determine whether the change in circumstances is likely to radically alter the obligation assumed, as it results from the contractual economy. If the contract loses its purpose, if the circumstances essential to the eyes of the parties are changing profoundly, the radical change of the contractual obligation is confirmed.

Only an extraordinary and unexpected change in circumstances having effects on the contract of an exceptional and unforeseeable nature may lead to the application of the theory of unpredictability.

Consideration could be given in our positive law on the one hand a concept that organizes the change of a situation in which the parties have concretely considered its maintenance as essential, and also a concept for the profound imbalance of benefits generated by the unpredictable and extraordinary change of circumstances.

The principle of the Convention-law envisaged by our Civil Code should be attenuated during the interpretation of conventions disrupted by


circumstances reasonably unpredictable at the conclusion of the contract. Thus, the judge will be guided in its interpretation by equity to restore the lost equilibrium.



I. Legal Texts

1. Loi N 42/1988 du 27 octobre 1988 portant titre préliminaire et livre premier du code civil, B.O., 1989 P. 9

2. Law n° 12/2007 of 27/03/2007 on public procurement , O.G n° 8 of 15 April 2007

3. Décret du 30 juillet 1888 code civil livre III: des contrats ou des obligations conventionnelles, B.O., 1888, P. 109

4. U.K Law Reform Act, Frustrated contracts, of 1943

5. European principles of law of contracts. Revised and completed version of 1998

II. Decided Case Laws

A. National Case Laws

1. RC 0140/07/TB/KCY of 05 September 2007 of district court of Kacyiru, unpublished

2. RC 0039/05/TD/Kro of 30 September 2005 of district court of Kicukiro, unpublished

3. RC 867/92 of 28th September 1992 of First Instance court of Kibungo, unpublished

4. R.C.A 7608/Ruh of 27 April 1992 of the Appeal court of Ruhengeri, unpublished

5. RCA 8769/kig of 29 July 1993 of the Appeal court of Kigali, unpublished

6. RC 3720/R10/2001 of 12th October 2001 of the First Instance Court of Gisenyi, unpublished

7. RC 2745/R7/2000 of 17th October 2000 of the First Instance Court of Gisenyi, unpublished


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