Du volontarisme au solidarisme contractuel: Contribution à une analyse comparée des droits français et camerounais

Abstract

 The doctrine of the freedom of contract has long been a fundamental rule in contract law. However, for several decades it has been the topic of a contentious debate by scholars on the basis that the doctrine does not protect the interests of people whose position during the contractual agreement does not allow them to be on an equal footing with the other contracting party. The main proponents against the freedom of contract doctrine are the solidarists. They advocate, beyond the classic duty of cooperation, a reciprocal duty according to which the parties are not only required to refrain from any conduct likely to jeopardize the expectations of the agreement, but must also see into it that they help the other party to benefit from their contractual engagements. There are traces of this solidarist view in both Cameroonian and French law. This is mostly manifested in the duty to take care of the interests of the other contractual party. All in all, the contract law doctrine of the freedom to contract still stands. However, the gradual modification of the doctrine can be justified in order that contract law better reflects the realities of an unequal society.