Insolvency: this is a vile word, Gustave Flaubert would say, as it is “ugly, without allure, or elegance”; it sounds bad, lacks class and passes for a “bad word”. He is almost not “politically correct”. It drains behind it, or with it, a lot of anguish. Insolvency is not solvency. This is present in the Legal Vocabulary. This one is almost banned there. Solvency, according to the Vocabulaire Cornu, is “the state of someone who is solvent, able to pay [and is] solvent, who has the means to pay his debts, is said of a person who, at the head of his business, regularly pays what he owes or who is able to meet a debt through his cash or even his assets to be realized”.
Insolvency is not an “entry” into the legal vocabulary; it does not belong to the world of ideas, to use Plato’s words, to the discourse on law, but to the discourse of law, and therefore to the world of law, made up of fictions, of “rules and institutions”, as Dean Carbonnier rightly says. Insolvency is not allowed by law; “the law,” Philippe Malaurie already taught, “does not like the poor very much.” To believe that he tolerates the insolvent is, to use Nietzsche’s words, too dangerous a game to play.
Insolvency is, however, although, paradoxically, an institution of business law. The stubbornness of the law to deny its reality favours, by an opposite or perverse effect, as Carbonnier would say, its fertilization in the legal field of business. Today, despite the energy expended, it is an “invisible institution” in the business world 2 ; A mysterious force to which the concurrence and the arrangement of the mechanisms instituted to defeat it, feeds the mystique of its absence in the legal register.
In Business: There is no such thing as zero risk. Insolvency is firmly opposed; it oscillates between the totem and the taboo, to spread the language of Freud, in business law. The gaze of Congolese law has almost no effect on her. It is hardly “stunned” by the sophistication and enrichment of the mechanisms instituted to contain any overflow or risk of upheaval likely to distort the balance of business.
THE SOPHISTICATION OF MECHANISMS TO COMBAT DEBTOR INSOLVENCY
The legislator’s tactic is simple; OHADA law is to bet everything on it and make it an important corridor in the fight against the insolvency of the debtor in the country. The genesis of the matter justifies its attractiveness and the legislator’s approach 3 . OHADA law is the most successful form “of the rights of which Dean Carbonnier says, from elsewhere”; They each cover various areas of business life et exaltentles orientations du législateur OHADA 4 . The risk of the debtor’s insolvency is worrying the creditor, and disturbing the peace of mind of the authorities. OHADA law conquers minds; It seduces and offers a wide range of solvency guarantees, debt recovery and security to the creditor.
The certified guarantee
The mechanization is original; its evocation arouses curiosity. The certified surety is one of the innovations of the law of securities under the OHADA label 5 . It adds to the debtor’s solvency guarantees; ” The guarantor may, in fact, be guaranteed by a certifier designated as such in the contract “.
This is an unprecedented mechanism; a singular approach; security interests have long been organized on the basis of classic precepts, borrowed from the rules of French civil law. Article 21 of the Uniform Act on the Organization of Security Interests thus takes us off the beaten track. We have come to the foot of history, as Emile Durkheim would say, to renew our “idea of law” ; the certified surety is on the edge of innovation and the singularity of African rights, sung today by Professor Alioune Sall, but long before him, announced by Professor Magloire Ondoa; from his thesis, the thesis of the originality of African rights.
“The guarantor may guarantee his commitment by granting a real security on one or more of his assets. It may also limit its commitment to the realizable value of the property or assets on which it has granted such a security.”
“The guarantor must present guarantees of solvency assessed taking into account all the elements of his assets. The debtor who cannot find a guarantor may replace it with any real security giving the same guarantees to the creditor.”
The hypothesis of a “surety within the surety” is beautiful, charming; it seduces and imposes itself as a new “idea of law” that germinates and takes shape; a great first on the security market
The proliferation of security interests
The movement of law, since the so-called sovereign National Conference, has changed. The legislator is now assuming its orientation; The era when the country was passing, according to the mood of the leaders, from the “liberal option to the liberal option” is over. The liberal option won the battle for democracy in the 90s; it is among all the politico-economic systems “the least worst of all”.
The “Congolese legislator no longer brings together all the securities in a single text, under the fourth part of the law of 20 July 1973 on the general regime of property, land and real estate and the regime of securities including articles 245 to 368”. It is no longer possible to say 9 . Land ownership is no longer exclusively recognized by the State. It is now a human right 10 . This favours, even in the event that the State is a party, the recourse and enforcement of mortgages on Congolese territory.
The new Congolese law gives pride of place to the law of securities, in the very sense of what the champions of OHADA law of securities want: “These are mainly securities based on property, in particular ownership assigned or retained as security. Through them, a greater attractiveness of OHADA law on securities is sought”, or of Congolese law on securities is, in any case, obtained, by a kind of useful effect of national law or procedural economy.
The final range introduces, through the community skylight, “new securities as well as new methods of realizing the old securities. The institution of the security agent and that of the professional debtor. All this [ensures the attractiveness of Congolese law].” In this sphere, all the legal techniques that Congolese law borrows or “enhances” in the field of public law are enclosed.
ENRICHMENT OF MECHANISMS TO COMBAT DEBTOR INSOLVENCY
Insolvency is not a private matter, as Benoit Plessix writes, “private law is very fond of sex”, it is attached to intimacy; the insolvency of everyone still passes; that of the debtor, not. It constitutes, on closer inspection, the driving force behind the new Congolese business legislation. The legislator is not content to bathe in the Community river to avoid any risk of contamination of business. He also intends to play his part in this fight for the security of the business market. The law on public-private partnerships and the law on factoring give only a brief overview.
The exaltation of the private partner
The spirit of the laws, as the Baron de la Brède would say, is collected on the lips of those who, among men, carry the project. Minister Dénis-Christel Sassou Nguesso shows this in his press release: “While many private partners want to invest in various sectors, a law has so far been lacking. A new ministry in charge of public-private partnership [is] created to attract and enhance local and foreign private investment, [and a law on the issue] has just been enacted. Thanks to this legal framework adopted by parliament at the end of 2022, then promulgated by the President of the Republic, investors are gaining confidence. The law guarantees objectivity, transparency, competition and equal opportunities between companies bidding for a contract”.
The same is true on the other side of the river; the Congolese law on public-private partnerships has returned to the factory. The reason is no secret: “The reform of the law on public-private partnership is a priority commitment of the government and is part of the dynamic of modernizing the business environment, supported by theInternational Monetary Fund’s Facility for Resilienceand Sustainability”, says Mr.
Guylain Nyembo, Congolese Minister of Planning.
The legislator’s aim is to ensure a certain standing for investors; “A land of opportunities”, as Minister Sassou Nguesso is proud to say. Financial scandals too often splash the political sphere. According to the authorities, many projects fail to see the light of day due to a lack of resources. The intervention of the legislator is timely. The aim is to provide, with legal technology, the public authority with the means of its action; to ensure that the latter, and vice versa, has secure, reliable and, above all, solvent business partners.
The magic potion of this success is concocted in the secrecy of administrative law, with the tools, to say the least, traditional. As it is said, “it is in old saucepans that good soups are made”; leasing, concessions and public service delegation. Nothing new in Congolese law. However, these types of contracts have been transformed into a new category in this struggle. These are the so-called public-private partnership contracts.
Preserving the partner
A new era begins; a new gadget is born. Behind the scenes, it participates in the conscious, even unconscious, desire of the legislator to listen to rights from elsewhere. Through these mechanisms, he anchors legislative production “to its time, and, with it, to adapt the justice, which stems from it, to its time, in a way”. This tactic allows, according to the judge’s gospel, the legislator to ensure the “respect of the State’s international commitments “.
The public-private partnership, the representative of the CEMAC Commission to the Republic of Congo confides to one of the authors of these lines, “ceases to be a national issue to become a community issue”. She is not the only one. A review of the legislation attests to this.
Community requirements are at the forefront of the current movement against insolvency law. Proof of a successful coexistence between the different community rights in Africa ? Who knows. They
testify, however, to the contribution of CEMAC law to the security of the business world; When OHADA law, dedicated to him, is prevented, it does not “settle” the question or fumbles and stammers.
Like PPPs, factoring appears, in the Congolese legal constellation, as a community star. It is “exercised by credit institutions and microfinance institutions in accordance with the regulations of the Central African Economic and Monetary Community, the Bank of Central African States (BEAC) and the Central African Banking Commission (COBAC). The 16 CEMAC authorities are interested in factoring 17 and are closely monitoring the exchanges around it; “Considering the need to ensure a better development and supervision of payment services, in order to guarantee the security of funds and the confidence of the public and to contribute to a controlled financial inclusion in the CEMAC”.
Factoring, in the words of the Congolese legislator, is “at the crossroads of order and freedom” a layer of autonomy of voluntariness and pinched with “legitimate constraint” to, as the sociologist Max Weber says, to embellish the whole. The legislator is far from marrying the carp and the rabbit again, although he is not far from it… that the hypothesis is not completely excluded. It is a “transaction by which the member transfers his claims to the factor, by means of a written agreement or contract, with subrogatory effect, who, in return for remuneration, pays him in advance all or part of the amount of the transferred receivables, while bearing or not, in accordance with the agreement, the risks of possible insolvency on the assigned receivables”.
The legislator borrows from Anglo-Saxon law, it seduces investors. The risk of insolvency of the debtor is thus reduced; This open-mindedness has long been lacking in the legislator of the French legal tradition. The business market is being saved by alternative financing instruments, which help, discreetly, to fight insolvency.
Factoring tends to keep all parties in business in the race with the exception that it helps to simplify, according to OHADA discourse, the procedures for debt collection and enforcement procedures. At the very end, whether on the side of public-private partnership contracts or on the factoring side, the project financing mechanism stands out and is buried, not without difficulty, in the ground of security law, also working with a view to circumventing, at the very least, the financial difficulties that often arise in Africa.
Not to conclude, the subject is profound; it is mixed, by a sort of casket effect, with many other subjects that arise in society, the legislator does well not to do without, but always with; insolvency is intrinsicto man. The Holy Scriptures teach it: “Gold and silver belong to God.”
Congolese law refrains from pushing the difficulty towards impossibility; it exorcizes the evil in the field of business, by means of PPPs, factoring contracts or project financing 24 . It is as if insolvency is no longer a reality. Or, at least, is real but without any danger to businessmen. May it please the younger generation to take an interest in it with us, to follow its course. We will gain everything but nothing.
