The Contract Validity Conditions

A- Introduction
The civil code defines a contract as « a meeting of minds between two persons
whereby one binds him self , with respect to the other , to give something or
render some service »

First of all , the contracts must respect four conditions to be validly formed as
provided for in Article 2 of Dahir of obligation and contracts .These conditions
relate to the Consent of the contracting parties (le consentement), the ability to
contract (la capacité), the contract object (l’objet) , and the cause of the
engagement (la cause).

So let’swonder about what Consent stands for.

B- The Consent:
As a rule, the consent is the agreement to do something.

Legally, it’s can be set as the will to involve personal liability or personal
property or both at the same time. The exchange of consents is accomplished by
the express or tacit manifestation of the will:

 Express when it’s written out.

 Tacit when it’s made orally.

The contract is concluded if the consent is free and informed, that is it must not
be vitiated.
In fact, if one of the parties did not givehis or herinformed consent, or if he or
she was pressured, his consent isvitiated.
Then we can say that the defects of consent are numbers of three

• Error (erreur)
• Deceit (dol)
• Duress (violence)
 The Contract Validity Conditions

C- The Capacity:
Capacity is one of those often used terms while discussing about Law of
Contract. In today’s globalized era, it is of utmost importance for a party to have
the capacity to contract in order to enter into commercial transactions.

So what is capacity to contract?

The term « capacity» refers to the ability of the contracting parties to come into
legally binding relations with each other. If any party fails to comply by this
condition, the subsequent contracts may be deemed to be invalid.

Every person is competent to contract who is of the age of majority according to

the law to which he is subject, and whois of sound mind and is not disqualified
from contracting by any law to which he is subject.

We have two main aspects when it comes to talk about capacity:

1- Attaining the age of majority

Accord to Moroccan law, the age of majority is defined as 18 years Any

person, domicilied in Morocco, who has not attained the age of 18 years is
termed as a minor.

Under certain circumstances, a guardian of a minor can enter into a valid

contract on be half of the minor and for his benefits.

However, in certain contracts the court approvalis required, such as when it

comes to selling a minor’s property.

Emancipation is a minority exception, it is defined as a legal mechanism by

which a child before attaining the age of majority is freed from control by their
parents or guardians, and the parents or guardians are freed from any and all
responsibility to ward the child.
 The Contract Validity Conditions

2- Being of soundmind

A person is said to be of sound mind if he is capable of understanding the

contract and being able to assess its effects upon his interests. A contract made
by a person of an unsound mind is void (Nul).

D- The Object:
The object of contract is the thing which it is agreed on the part of the party
receiving the consideration to do or not to do.
The object of contract must be lawfu lwhen the contract is made, possible and
ascertainable by the time; the contractis to be performed. The objectis a thing,
service or right that constitutes the prestation of an obligation in a contract is to
be performed. It could be anything that in within the commerce of men either
present or futur.

An object of contract must be:

• Within the commerce of man.

• Transmissible from one person to another.
• Possible, both legally and physically.
• Determinable, without the need of another contract.

Similarly an object must not to be:

• Outside the commerce of man, such as a public properties.

• Intransmissible, such as civil and political rights.
• Contrary to law, morals, good customs, public order or public policy.
A future thing may also beused as an object.
 The Contract Validity Conditions

E- The Cause
The cause is the essential reason which moves the parties to enter into a
contract .
This is the why of the contract
1- Cause of contract

 Onerousor contracts : this involves the promise of a service or thing by

a party which need not be monetary but could entail other things or
undertakings of value .
 For remuneratory contracts : the cause is a service or benefit which
does not arise out of any legal obligation.
 For gratuitous contracts : the cause is the liberality or generosity of a
party .
Essentially , the latter involves contracts of donation

2- Cause distinguished from motive

The Cause is the immediate or direct reason while motive the remote or
indirect reason.
The illegality of the cause affects the validity of a contract while the
illegality of one’s motive does not render the contract void..