CONTRACTS - BASICS

The law of contract in Mauritius is inspired from French law and the applicable law is the Mauritian Civil Code.

What is a contract? 

« Le contrat est une convention par laquelle une ou plusieurs personnes s'obligent, envers une ou plusieurs autres, à donner, à faire ou ne pas faire quelque chose ». A contract is therefore an agreement by which one or more persons undertake, towards one or more other persons, to give, to do or not to do something.

When is a contract valid?

The following 4 conditions need to be satisfied for the validity of a contract:

Consent of parties;

Capacity to contract;

Object of the contract (the contract must be made for a lawful objective) and 

Lawful cause of the contract.

Does a contract necessarily need to be in writing? 

A contract does not necessarily be in writing to be valid if the 4 conditions mentioned above are satisfied. But, as a matter of security and precautions, it is preferable that contracts are made in writing. Moreover, it is always difficult to prove the existence of a contract which is not in writing. Hence, it is better to have a written contract. There are also certain contracts which necessarily need to be in writing (notarial deeds).

In which circumstances the consent of a party to a contract may be considered to have been vitiated? 

The law says that there is no valid consent if the consent

was given by error; 

was extorted by use of violence/force; or

was obtained by fraud.

When the consent of any one party to the contract has been vitiated, it does not mean that the contract is null and void as of right. It has to be declared null and void by a court of law provided that an action is entered in court.

Who can contract? 

Any person can enter into a contract with another person provided that he/she is not declared incapacitated by law. Same applies when the person is prohibited by law to enter into certain contracts.

Can a minor enter into a contract? 

No. The law says that a minor does not have the capacity to contract. However, the minor can contract if he/she is emancipated by marriage (minor emancipated by marriage means an individual between the age of 16-18 who has contracted civil marriage with the prior consent of his/her parents or consent of any one of the parents who exclusively exercise parental authority).

Can a “majeur en tutelle ou en curatelle” (an adult whose mental faculties are altered/a mentally disturbed adult) enter into a contract? 

No. Since non-emancipated minors and “majeurs en tutelle ou en curatelle” do not have the capacity to contract with other persons, the contract, if entered into by them, may be declared null and void by court.

Is a contract binding on the parties only? 

The law says that agreements lawfully entered into have force of law for those who have contracted the agreements and the parties must execute the agreements in good faith. Moreover, agreements are binding on the parties only and have no effect on third parties except when there is a “stipulation pour autrui” (a provision in the contract conferring a benefit on a third party). 



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