The concept of credit transaction

The eruption of new players and competitors on the credit market is reigniting the debate on the notion of credit operation in the West African monetary zone. The current conception, fundamentally limited to the provision of funds, turns out to be outdated and invites us to consider a pragmatic conception capable of accounting, in an objective and concrete way, for all the banking and extra-banking techniques for financing the needs of society. existence and income-generating activities. Such a perception can have the disadvantage of diluting the concept; however, tomorrow's challenge seems to be access to micro-credit that mobile platforms can boost, without ignoring the complexity of regulation in the face of the explosion of acts and the diversification of credit providers.

The assertion that "every loan is a credit transaction, not every credit transaction is a loan"1sounds like a universal legal precept – still relevant –, in the sense that it gives rise to more interesting debates, not yet settled in the major contemporary banking and financial systems2and in derived rights3. This authentic position constitutes a reflexive stimulus on the notion of credit operations in Togolese law.4and, more broadly, in the West African zone where it still seems to be uncertain, as it is faced with new, complex and contradictory developments.

In this heterogeneous legal environment5, it is undeniable that the notion of credit transaction is not ignored by the legislator. Article 6 of Uniform Law No. 2009-019 of September 7, 2009 on banking regulations in the West African Monetary Union (WAMU) states, bluntly, that "constitutes a credit transaction, for the application of the this Act, any act by which a person, acting for consideration: 1) makes or promises to make funds available to another person; 2) takes, in the interest of the latter, a commitment by signature such as an endorsement, a suretyship or a guarantee”. Are also credit operations, by assimilation, according to the aforementioned text, “leasing and, in general, any rental operation combined with an option to buy”.

This legislation is an identical copy of article L. 313-1 of the French Monetary and Financial Code6. However, unlike French law which devotes special provisions to the consumer in the Consumer Code7, no derogatory national or Community provision dedicated to consumer credit exists in the Union8. Subject to this reservation, the banking legislation constitutes a real improvement of the notional elements previously contained in article 5 of the framework law of April 24, 1990 on banking regulations in the WAMU. Rather, it proceeded by enumerating: "Lending, discounting, reverse repurchase, acquisition of receivables, guarantees, financing of sales on credit and leasing transactions are considered to be credit transactions". .

Only, in the two aforementioned textual hypotheses, the legislator seems to limit the credit operation, primarily, to the provision of remunerated funds and, secondarily, to similar operations, in particular leasing and sale for repurchase. Such a concept, the main objective of which is to preserve the banking monopoly, seems restrictive. Over time, it turns out to be unsuitable, unsatisfactory, even outdated, because the current credit market has become very fluid and exposes, willingly or by force, to competition from new players and new products, in particular loans between individuals. on the Internet9or by telephone, with electronic money as the basis.

10. The adoption by the Central Bank of West Africa (BCEAO) of a regulatory framework applicable to electronic money in the WAMU zone (Instruction No. 008-05-2015) has undoubtedly enabled the development of a diversity of basic financial services, but it has also created new credit needs.

In reality, there are many transactions in the banking and financial markets, namely financial leases not accompanied by a purchase option, as well as transactions in financial securities (financial contracts and credit derivatives)

11, which appear as constructions resulting from practice and which do not care about preconceived frameworks. They claim all the same the qualification of credit operations,

12. On the other hand, they encounter persistent difficulties in identifying with the classical notion. The scope of the rules relating to consumer credit is also not very precise; better, it is indeterminate. In French law, for example, in this normative imbroglio, the Court of Cassation had to point the way, in a remarkable judgment of March 7, 2018, by deciding that the marketing of telephone packages associated with that of mobile phone.

13. In a second judgment delivered in the same case on March 16, 2022, the same Court approves the referring court of having effectively adopted this qualification.

14. The ultimate uneasiness relates to the fact that telephone operators are not credit establishments and do not come under banking or financial regulations. We also know that certain activities are said to be regulated and subject to sanctions when they are suspicious, particularly in financial matters. The recent decision no. CM/07/09/2021 of September 23, 2021, adopting the uniform law relating to stock market offenses on the WAMU regional financial market, reinforces this conviction.

To report on the situation, which has become pragmatic, but confused and very worrying for the regulator.

15, the economic analysis of the credit operation is content with flexible criteria based on the performance of the lender, the confidence justifying the risk and the absence of speculation to circumscribe the operation. This economic approach would not fully win legal acceptance, because it is sometimes deemed imprecise.