Name: Marylisa Fadzai Murwira

Reg No: R2217237W

Programme: LSC 135: Business Law

Level: 1.2

Due Date: 17 March 2023

Question:

a) Citing relevant case law, analyse numerous ways in which consensus can be
improperly attained in law of contract.
b) Discuss the different forms in which minors are exempted to perform a juristic act.
c) Citing relevant case law, analyse void and voidable contract.
 a) Citing relevant case law, analyse numerous ways in which consensus can be
improperly attained in law of contract.

An agreement is the meeting of minds. Lawyers call it consensus ad idem (meeting of the
minds). This means that it is a matter of observation and drawing of conclusions from the
circumstances.Consensus is a fundamental principle in the law of contract in Zimbabwe.
Improper attainment of consensus can render a contract unenforceable. This essay, will
analyse numerous ways in which consensus can be improperly attained in the law of contract,
using relevant case law. Harvard in-text and end-text referencing style will be used.

One way in which consensus can be improperly attained is through misrepresentation. A

representation statement is a statement of fact made by one party to the contract which
induces the other party to enter into the contract. The statement is not a term of the contract-
it operates to influence the other party to enter into a contract. If the representation is untrue,
it is misrepresentation. Obviously the misrepresentation must relate to a matter of fact- not by
a third party. If these three requirements are made, the innocent party is entitled to cancel the
contract and be restored to the status quo ante. (The position they occupied before entering
into the contract). That remedy is called rescission (cancel and status quo ante). In case of
Harper vs Webser 1956 92) SA 495, the innocent party had been induced to purchase a herd
of cattle by a fraudulent misrepresentation that the herd was free from disease. Before the
discovery of the disease, 66 out of 387 had been sold for slaughter.

Undue influence. Undue influence arises in those situations of pressure where parties are in a
relationship that allows one of them to exercise an influence over the other. Some influences
are regarded by the law as illegitimate and may lead to the contract not being enforceable.
Under our law ad undue influence must be proved- there is no presumption of undue
influence as in the case under English Law. In general there are some relationships where the
courts easily find undue influence. These are: husband and wife, mother and minor daughter,
priest and parishner, doctor and patient and lawyer and client. Case of Prellar v Jordan 1956
1 SA 483, Jordaan an elderly farmer donated and transferred 4 farms to Preller, his doctor, to
be administered by Preller for the benefit of Jordaan’s wife and farm labourers. Preller
subsequently transferred one farm to his son and 2 to his daughter. Jordaan sought to recover
the farms arguing that he had been sick, spiritually weak, and mentally/physically exhausted
and had fallen totally under the influence of his doctor. He argued that Preller had used his
influence improperly otherwise, he would never have agreed to the transfer.
Illegality. This arises where the making of a contract contravenes some rule of law. The rule
may arise from legislation or from common law. The effect is the same-the contract is illegal
and unenforceable. It is common for the law to prohibit some contracts. Contract prohibited
by legislation depend on the legislation in question e.g. certain products may be prohibited
from being exported/imported and a contract purporting to import such products will be
illegal. In each case, it is a matter of interpretation to determine whether or not contract is
prohibited. In the case of ZIMCARE v GMB 1992 (2) ZLR 240, legislation required Farmers
to sell and deliver their maize only to GMB. A poultry producing company leased some field
from the appellant (a farming company) and by separate agreement, the farmer continued to
manage the field. The farmer was paid for the services of management. The maize from the
field was delivered to the poultry producing company. The GMB successfully argued in court
that the arrangement was a essentially that of seller and purchaser and was made to
circumvent the law. The court declared the contract illegal. The common law also prohibits
certain contracts. These include; contract involving trade with an enemy of the state if
Zimbabwe is at war; e.g. contracts to oust the jurisdiction of the courts, contracts encouraging
crime, contracts that are contra bonos mores.

Mistake exists where parties to a contract think that they have agreed when in actual fact
they have not. A unilateral mistake is one type of mistake where one party only is laboring
under a mistake. In the case on Mabhena v Bulawayo Polytechnic College HB-22-94, the
applicant was admitted to a nutrition course at Bulawayo Polytechnic College. Her admission
was on the strength of a Zambian School Leaving Certificate which gave her the equivalent
of 3 O’levels. The college’s minimum requirements stipulate 5 O’levels. The HOD was new
to the post and accepted the applicant by mistake. The applicant had not cheated. She was
unaware of the college mistake.

Duress. Occurs where a party to a contract has some violence or threats of violence or some
other forms of illegitimate pressure applied to him/her to enter into a contract. A contract
entered into as a result of duress is not automatically unenforceable but there are certain
requirements that should be met.

In conclusion, consensus is a fundamental principle in the law of contract, and any improper
attainment of consensus can make the contract unenforceable. Misrepresentation, duress,
undue influence, mistake, illegality, coercion, and incapacity are all ways in which consensus
can be improperly attained. Parties to a contract should ensure that they freely give their
consent and fully understand the terms of the contract before entering into it.

b. Discuss the different forms in which minors are exempted to perform a juristic act.

The legal capacity to perform juristic acts is an essential attribute of an individual in any legal
system. However, minors (those below the age of majority) often lack full legal capacity due
to their age and cognitive development. This essay will discuss different forms in which
minors are exempted from performing juristic acts, exploring the rationale behind such
exemptions and examining the implications for both minors and contracting parties. Key
concepts like capacity, juristic acts, and the age of majority will be defined, followed by an
analysis of the different forms of exemption, including voidability, parental consent,
restitution, age-based exemption and ratification.

Legal capacity refers to the ability of an individual to perform juristic acts and to create,
modify, or extinguish legal rights and obligations (Kötz, 1997).

A juristic act is a voluntary action, either unilateral or bilateral, that has legal consequences
and is recognized and regulated by law (Zimmermann, 1996).

The age of majority is the legal threshold at which a person is considered an adult and
acquires full legal capacity. This age varies across jurisdictions, typically ranging from 18 to
21 years (Smits, 2014).

One of the primary ways in which minors are exempted from performing juristic acts is
through the doctrine of voidability. Contracts entered into by minors are generally
considered voidable at the minor's option (Beale et al., 2002). This means that a minor can
choose to either enforce or avoid the contract, providing them with a level of protection from
potential exploitation or poor decision-making.The rationale behind the voidability of minors'
contracts is rooted in the principle of protecting their interests and recognizing their limited
ability to make informed decisions (Atiyah, 2012). Voidability, however, does not render a
contract automatically void. It requires the minor to take affirmative action to avoid the
contract, either during their minority or within a reasonable time after reaching the age of
majority (McKendrick, 2014). This ensures that the minor's contractual counterpart is not left
without a legal remedy if the minor decides to enforce the contract. In cases where a minor
exercises their right to avoid a contract, principles of restitution may apply to restore the
parties to their pre-contractual positions (Burrows, 2011).

Another form of exemption for minors in relation to juristic acts is the Age-Based
Exemption. In Zimbabwe, the age of majority is 18 years. Before this age, minors are not
legally capable of performing certain acts, including entering into contracts or making wills.
This is known as age-based exemption. For example, in the case of Fidelity Life Assurance
Co. Ltd v. Lovejoy Chikwanda and Others (2011), the court held that contracts entered into
by minors under the age of 18 years were voidable. The court stated that minors lacked the
legal capacity to enter into contracts, thus making such contracts unenforceable.

Apart from that, another form of exemption for minors in relation to juristic acts is the
possibility of ratifying a contract upon reaching the age of majority (Collins, 2010).
Ratification is the process by which a person, having acquired full legal capacity, confirms
and adopts a previously voidable contract. Once ratified, the contract is treated as if it had
been validly entered into from the outset, and the parties are bound by its terms. Ratification
provides minors with the opportunity to reflect upon their contractual obligations and make
an informed decision about whether to maintain the contract once they have acquired full
legal capacity (Stone, 2005). It also offers certainty and security for the other contracting
party, who may be reluctant to engage in transactions with minors due to the potential for
avoidance.

To add on, parental consent is another form of exemption for minors to perform a juristic
act. In Zimbabwe, parents or legal guardians can give consent on behalf of a minor, allowing
them to perform a juristic act. For example, in the case of Mhuriro v. Vela (1998), the court
held that a minor could enter into a will with the consent of their parent or legal guardian.
This means that the minor can legally distribute their assets after their death. Without parental
consent, the minor would not be legally capable of making a will.

Statutory exemptions are another form of exemption for minors to perform a juristic act. In
Zimbabwe, there are specific laws that allow minors to perform certain acts, even if they are
not legally capable of doing so. For example, the Guardianship of Minors Act allows a minor
to enter into a contract for the sale of their property with the consent of their parent or legal
guardian. This means that the minor can legally sell their property even though they are not
legally capable of entering into a contract.
c. Citing relevant case law, analyse void and voidable contract

A contract is an agreement between two or more persons enforceable by law. The legal
recognition makes an agreement a contract.

A void contract is an invalid contract which means that it is not legally enforceable, and it is
as if the contract never existed. A valid contract have specific elemets it should contain and
may be void for various reasons, including illegality, impossibility of performance, or lack of
capacity. In the Zimbabwean case of Zimbabwe Electricity Supply Authority v Sable
Chemical Industries Ltd [1998] ZLR 189, the court held that a contract was void because it
was illegal under the Exchange Control Regulations.

Another example of a void contract is a contract that involves illegal activities. In the case of
Holman v. Johnson (1775), the court held that a contract that involved the sale of a ship that
was involved in smuggling was void. The court stated that the contract was against public
policy and could not be enforced.

In Zimbabwe, the Exchange Control Regulations prohibit the payment of foreign currency for
goods or services that are produced or provided locally. In the Sable Chemical Industries
case, the defendant had imported certain goods and paid for them in foreign currency, which
was a violation of the Exchange Control Regulations. The court held that the contract was
void and unenforceable because it contravened the law.

A voidable contract is an agreement that is initially enforceable, but one party has the option
to avoid or rescind the contract. The party with the option to avoid the contract may do so for
various reasons, including misrepresentation, duress, undue influence, or lack of capacity. In
Zimbabwe, the case of Chikwamba v Mawere [2003] ZWSC 53 is an example of a voidable
contract. Another example of a void contract is a contract that involves illegal activities. In
the case of Holman v. Johnson (1775), the court held that a contract that involved the sale of
a ship that was involved in smuggling was void. The court stated that the contract was against
public policy and could not be enforced.
In the Chikwamba v Mawere case, the plaintiff had entered into a contract to sell a vehicle to
the defendant. However, the defendant failed to pay the full purchase price, which was a
breach of the contract. The plaintiff sought to rescind the contract, arguing that the defendant
had induced the contract through fraudulent misrepresentation. The court held that the
contract was voidable because the defendant had made false representations about his
financial position, which had induced the plaintiff to enter into the contract.

In conclusion, void and voidable contracts are important concepts in contract law. A void
contract is an agreement that is not legally enforceable, while a voidable contract is initially
enforceable, but one party has the option to avoid or rescind the contract. In Zimbabwe, the
Sable Chemical Industries and Chikwamba v Mawere cases are examples of void and
voidable contracts, respectively. It is essential to understand the legal implications of void
and voidable contracts to ensure that commercial transactions are legally valid and
enforceable.
References:

Atiyah, P. S. (2012). *An Introduction to the Law of Contract*. Oxford: Clarendon Press.

Beale, H., Bishop, W., & Furmston, M. (2002). *Contract: Cases and Materials*. Oxford:
Oxford University Press.

Burrows, A. (2011). *A Restatement of the English Law of Unjust Enrichment*. Oxford:

Oxford University Press.

Collins, H. (2010). *The Law of Contract*. Cambridge: Cambridge University Press.

Fidelity Life Assurance Co. Ltd v. Lovejoy Chikwanda and Others, HH-335-11 (unreported)

Holman v. Johnson, (1775) 1 Cowp. 341Carlill v. Carbolic Smoke Ball Co., [1892] EWCA
Civ 1

Kötz, H. (199Chikwakwa v Mhlanga [2014] ZWHHC 6.Moyo v Nyathi [2011] ZWHHC

425.Maparanyanga v Maparanyanga [1984] ZLR 144 (H).

Mhuriro v. Vela, HH-45-98 (unreported)Guardianship of Minors Act [Chapter 5:08]

(retrieved from https://www.veritaszim.net/node/331)

Zimbabwe Electricity Supply Authority v Sable Chemical Industries Ltd [1998] ZLR 189
Chikwamba v Mawere [2003] ZWSC 53

Zimbabwe Music Rights Association (Private) Limited v Mukanya [2013] ZWHHC

751.Sibanda v Sibanda [1992] ZLR 238 (S).