National Assembly completes revision of Civil Code in committee stage |13 March 2020
The National Assembly yesterday completed its work to revise the Civil Code of Seychelles in committee stage to amend the remaining 1000 Articles.
The whole day discussions ended mid afternoon.
But the Assembly has deferred the 3rd reading on the Civil Code Bill 2018 until the technical panel in collaboration with the Bills Committee submit a final draft of the Code containing all the amendments including the new provisions which have been discussed and agreed. This is expected to be submitted to the Assembly in May.
Again the discussions yesterday were led by Assembly member and lawyer specialised in the field and chairman of the Bills Committee, Bernard Georges.
Mr Georges noted at the start that the largest number of these Articles were just procedures to be followed and did not require much amendment.
Like the previous sessions this week, Vice-President Vincent Meriton took part in yesterday’s discussions alongside the technical panel comprising senior legal draftsperson Victor Pool, the Attorney General Frank Ally and the consultant to the Judiciary, Professor Tony Angelo.
Articles 1119, 1120, 1121 and 1122, 1123, 1124 up to 1128 relating to the issue of ‘contract’ dominated the morning discussions. Mr Georges highlighted that those Articles stipulate and address why, when, how a person decides to enter into a contract which is either for his or her own personal benefits or to benefit other persons and all related matters.
Meanwhile Article 1128 is considered very important as it stipulates that only things/objects with commercial value can be entered into a contract. Discussions covered and reviewed all the other Articles and sections having to do with various procedures and aspects of a contract before members voted 26 for and nobody against to approve the different Articles and Sections from 1101 to 1133.
Other Articles reviewed covered the ‘Effects and Obligations’ which sort of gives a taste as well as a roadmap as to what is and how to interprete a contract, the power of the law in a contract, breach of a contract, language used in a contract, fairness of a contract …
All contracts start off with a good agreement but when things get sour along the way and the law needs to intervene, the leader of government business Charles de Commarmond wanted to know if a mutual agreement between the two parties would not be enough without the law intervening.
Mr Georges explained that if there is a strong mutual agreement between the two parties the intervention of the law will not be necessary. But if the parties cannot reach an agreement the Court will appoint an arbitrator to modify their contract.
Mr Georges further stressed that all contracts can be modified at any time if the parties want to do so.
Other matters related to a ‘Contract’ which were addressed included calculating damages following breach of contract, details related to payment of damages related to breach of contract.
MNA Jean François Ferrari sought more details about punitive damages in relation to breach of contract which Mr Georges clarified, noting that it is good to seek good advice before entering into a contract.
Members went on to vote 23 in favour and nobody against to approve the Articles and Sections 1134 to 1167 related to effects of obligations to a contract.
With regard to the different kinds of obligations attached to a contract, the different Articles and Sections from 1168 to 1233, Mr Georges noted no amendments and members approved the Articles and Sections 24 in favour and nobody against.
Discussions continued to review all Articles and Sections 1234 to 1314 relating to discharge of obligations of a contract. They explained how a contract comes to an end, listed the different ways how a contract is ended and other related details which Assembly members approved 17 in favour, nobody against as no other amendments were proposed.
Articles and Sections from 1315 relate to proof of obligations and it has been subject to different amendments notably in Article 1321 which address the issue of back letters. The leader of the opposition, Wavel Ramkalawan, argued that a back letter is a sort of contract between two persons based on a private arrangement but of which the public gets a different explanation, it is not registered and no legal officer knows of its existence.
“I believe this is not good and should remain as it was previously,” he stated, noting that the proposed amendment will open the door for fraud and corruption. He insisted that a back letter must be registered to have the necessary legal power. The argument received the full support of United Seychelles member Sebastien Pillay and LDS member Gervais Henrie and Terence Mondon who went on to add that a back letter was used by people to hide their assets and as such encourages corruption, a current challenge of our society which we are still trying to address.
But Mr Georges argued that the principle of back letter should not be rejected completely but should be closely assessed and reviewed and properly balanced before a final decision is agreed on. Professor Angelo, together with the technical committee, has been tasked with studying the different views aired on the matter in view of finding a compromise that would reflect the views expressed while at the same time prevent other authorities from thinking we are allowing a system that evades the law and the tax system.
Yesterday’s afternoon session focused on the remaining Sections of Article 1315 relating to other aspects of proof of obligation as well as obligation that arise without agreement and different aspects and components as related up to Article 1369 after which members voted 11 in favour and nobody against to approve the different Articles and Sections.
Other Articles and Sections from 1370 to 1381 relate to contracts without a proper/formal agreement which are done mostly without permission but in good faith and in the benefit of other people. The matter of unjust enrichment is also addressed under Article 1381 but has undergone any amendment and members approved 18 in favour nobody against.
Articles 1382 to 1399 relate to actions that cause harm intentionally, unintentionally, by negligence or by accident and such actions should be repaired by the person responsible. These remain unchanged but a new Section relating to private life, privacy and confidential information allows the Court to order that damages are awarded in cases whereby there has been interference in a person’s private life or where confidential information has been divulged. The new Section also addresses the different issues relating to neighbourly disturbances and nuisance. Members voted 17 in favour nobody against to approve the Articles and Sections.
Article 1400 is a new provision and it relates to prenuptial contract as well as a pre-relationship contract for unmarried couples and all matters relating to those and this Article was approved 19 in favour and nobody against.
All the remaining Articles remain unchanged and they relate to matters like sales, promise of sales, exchange, hire of services and hire of things/lease, partnership contracts, registration of mortgages, land rights…
At the end of the discussion members voted 20 in favour, none against to approve the final Articles and Sections 1582 up 2281.
Marie-Anne Lepathy