The compromised land sale: the heir who resells a plot at Bonabéri

The starting point is article 1583 of the Civil Code, still applicable in the French-speaking provinces: a sale is perfect between the parties as soon as the thing and the price are agreed, even if the thing has not been delivered and the price not paid.

Three elements must be checked. First, the thing: it is identified by its land certificate. Second, the price: 25,000,000 FCFA, definite. Third, consent on the reciprocal obligations: each party undertakes to do something, the seller to deliver and transfer, the buyer to pay. That reciprocity makes the document a promesse synallagmatique de vente, which is legally a sale, and not a promesse unilatérale d'achat containing an option. The words 'ferme et définitive' confirm that the parties did not intend to reserve a right of withdrawal.

The clause postponing ownership to the notarial deed must then be construed. Read literally, it delays the transfer, which the parties are free to do. But read in its contractual context (a definite sale, a partial payment already made, a fixed date before the notary for the balance), it is a modality of payment and of publicité foncière, not a condition suspending the transfer. Its real function is opposability to third parties and registration of the mutation.

Consequence: on 20 March 2024 the sale was formed and, in the absence of a genuine clause of reservation, ownership had passed to Mrs Ngo Bassong, subject to registration. The heir does not inherit a freedom to resell: he continues the person of the deceased and is bound by the obligations contracted by him, and an heir who accepts purely and simply is liable for the debts of the succession even beyond its assets.

The obligation breached is an obligation de donner and de délivrer, not a mere obligation de faire. This distinction matters: article 1142 resolves obligations de faire in damages, whereas an obligation to transfer property can be enforced in kind.

Practically, Mrs Ngo Bassong should: (1) sue the heir for a judgment declaring the sale perfect and ordering the transfer; (2) ask the court to hold that the judgment 'vaut titre' so that it can be presented to the land registry in place of the notarial deed, in accordance with the practice of the Cameroonian courts; (3) claim delivery, removal of the fence, and damages for delay; (4) invoke the 10 per cent clause pénale, which represents 2,500,000 FCFA.

Two obstacles must be anticipated. The first is the clause itself: the heir will argue that the notarial deed was a condition precedent to the transfer, so that no ownership passed. The answer is that a clause fixing the date of the deed cannot be turned into a condition when the sale is declared 'ferme et définitive'; otherwise the debtor would profit from his own default in attending the notary's office. The second obstacle is procedural: a judgment that has not yet become final may be refused registration, so she should seek exécution provisoire and register the judgment as soon as it is delivered.

The clause pénale does not give the debtor an option to pay and keep the land: the creditor chooses between performance and the penalty, and the judge may reduce a manifestly excessive penalty but not substitute the penalty for performance against the creditor's will. She may claim both performance and damages for the delay, since the penalty covers the default but not the whole of the loss.

Against Mr Ousmanou the analysis is governed by Ordonnance No. 74-1 of 6 July 1974: the land certificate is conclusive and the registered mutation is opposable. Mrs Ngo Bassong did not register anything; Mr Ousmanou registered the mutation on 5 April. On a pure priority-of-registration reasoning, he wins.

But two lines of attack remain. First, fraud: if Mr Ousmanou knew of the earlier sale, or bought from an heir whom he knew to be acting in breach of a binding sale, his registration may be challenged by an action en revendication founded on fraud (fraus omnia corrumpit), with a request for cancellation of the mutation. Evidence is the key: date of the sale, rapidity, absence of any prior inquiry at the land registry, price paid. Second, the heir's lack of title: he sold a thing already sold, so the second sale is at best a relative nullity which the first buyer may invoke; but the defence of the conclusive land certificate will usually prevail in the absence of proved fraud.

Her real fault was preventive. She should have: inserted a clause making the compromise conditional on the seller producing a clean, registered title and on the ban on any dealing; lodged an opposition at the land registry to block any registration of the plot pending completion (his fencing and his resale would then have been impossible to register); had the compromise published; escrowed the balance with the notary rather than promising it; and inserted a specific-performance clause with an astreinte. The lesson is that in Cameroonian land law the race is to the register, not to the contract, and the advocate's drafting must reflect that reality rather than rely on article 1583 alone.