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Journal articles

L’obligation de faire dans la phase précontractuelle en droit civil mauricien

Abstract : Traditionally, first-year law students in Mauritius are taught that the conclusion of a contract is based on an offer followed by an acceptance. However, the phase preceding the conclusion of the contract is not always based on this traditional model. This is particularly the case pertaining to real estate sales, where the conclusion of the planned contract is often preceded by a more or less lengthy negotiation, at the end of which it may be impossible to identify an offer and its acceptance. It may happen, during this pre-contractual phase, that the parties, wishing to move closer to the conclusion of the final contract, conclude real contracts, called pre-contracts. This applies in particular to unilateral promise of contract, synallagmatic promise of contract and pact of preference. This pre-contractual phase is thus a source of legal effects and reveals a fairly regular presence of the obligation to act. In unilateral promises of contract, the obligation to act seems to be present, without really being. On the other hand, in pre-contractual negotiation, synallagmatic promise of contract, pact of preference and irrevocable offer the obligation to act is present. The sanction applicable in the event of non-fulfillment of the obligation to act will depend directly on the existence or non-existence during the pre-contractual phase of consent to the proposed final contract. On the one hand, when the two parties have still not given their reciprocal consents to the final contract, and it happens in a pre-contractual negotiation or even in an autonomous synallagmatic promise, the only possible sanction in the event of non-performance of the obligation to act will consist of the award of damages to the victim of this non-performance. No one can be forced to become a party to a new contract. On the other hand, when one of the parties has already committed, by giving, as is the case in a pact of preference, or in a unilateral promise of contract or in a synallagmatic promise of contract equivalent to a contract or in an offer, his consent to the final contract, the performance of the obligation to act becomes conceivable, because no intolerable pressure is exerted on the consent of the person who has already consented to the final contract. Therefore, it becomes possible to opt for a more vigorous sanction than a simple award of damages. This is the case with the substitution of the beneficiary to a party to the contract, the declaration without effect of the revocation of a unilateral promise of contract or with an offer or the replacement of the authentic (notarial) form by a judgment of the Supreme Court of Mauritius, in order to ensure the transfer of ownership of the thing to the purchaser.
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Submitted on : Monday, August 30, 2021 - 3:03:34 PM
Last modification on : Friday, September 3, 2021 - 3:34:14 AM


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Goran Georgijevic. L’obligation de faire dans la phase précontractuelle en droit civil mauricien. Revue juridique de l'Océan Indien, Association « Droit dans l’Océan Indien » (LexOI), 2021, pp.35-60. ⟨hal-03328961⟩



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