COMMERCIAL LAW HANDBOOK

AUTHORED BY MR A. DUBE
LLB (UP), LLM CORPORATE
LAW (UP) LLD (UNISA) READING.
&
MR L. NCUBE LLB (UZ) MBA
(NUST) READING.
TABLE OF CONTENTS
CHAPTER TOPIC page
CHAPTER 1 Introduction to law 2
CHAPTER 2 Sources of law 5

CHAPTER 3 Introduction to the science of law 10

CHAPTER 4 Patrimonial law 13

CHAPTER 5 Introduction to legal obligations 21

CHAPTER 6 Unjustified enrichment 22

CHAPTER 7 Delict 24
CHAPTER 8 Law of contract 29

CHAPTER 9 Consensus 31

CHAPTER 10 Capacity to perform juristic acts 41

CHAPTER 11 Physical possibility of performance 46

CHAPTER 12 Legality 48

CHAPTER 13 Caveat Subscriptor rule 50

CHAPTER 14 Terms of contract. 55

CHAPTER 15 Breach of contract and remedies for breach 60

CHAPTER 16 Remedies for breach of Contract 64

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CHAPTER 1
INTRODUCTION TO LAW

What is law
Law is defined as set of rules that regulate human behaviour or Rules which state how people
are to conduct themselves or The body of rules which state or community recognises as
binding on its subjects or members and which determine those persons’ rights and duties

History of Zimbabwean Law

Zimbabwe is mainly dominated by Roman Dutch Law also known as Common law. Through
court decisions, a vast number of legislative enactments over the years and the introduction of
certain legislation from English, Zimbabwean law was further enriched and developed.
There is a need to trace the development of Roman law, its fusion with customary law of
Netherlands to form Roman Dutch Law and the long journey of that system into Zimbabwe.
The development of Roman Law is closely related to Constitutional History of Rome. There
are four periods that can be distinguished.

a. Monarchy period (753BC- 510BC)

During this stage, Rome was undeveloped and law consisted of customs

b. Republican Period (510BC-27BC)

The law was for the first time systematised during this period and was put into writing in the
so called 12 tables. It was inscribed on 12 tables

c. Period of the Emperors (27BC-284AD)

The empire expanded over large parts of Europe and Northern Africa

d. Principate or dominate stage

Empire was divided into Western and Eastern Roman Empire in 395AD.

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 The Germanic Tribes conquered the Western Roman Empire in 476AD and application of
Roman law started to decline. The empire existed in the East. Justinian ruled in this part
between 527AD and 565AD. He held Roman Law in high esteem and instructed a
commission to codify the legal system. The codification was called Corpus Luris Civilis. As
the Roman Empire and community Degenerated the legal system likewise stagnated. Roman
Law did not disappear. Justinian’s codification ensured that Roman Law was preserved
throughout the Middle Ages. In the 11th century, Roman Law was rediscovered and studied at
Law school in Bologna. Various law schools were founded thereafter notes and
commentaries on Roman Law were written by students. Roman law was spread throughout
Europe. By the end of the middle Ages, there was an increasing need in Europe for developed
legal system. The various tribal and provincial legal systems of North West Europe of 12 th
Century were suitable for a simple agricultural Community but could not answer to the
demands of a rapidly developing commercial world. Then Roman Law was applied in
addition to Indigenous Law. Various jurists produced writing on Roman and Dutch law.
Their opinions are still today acceptable as authoritative by Zimbabwean courts. Best known
writers in Holland were
Hugo De Groot
Johannes Voet
Simeon van Leeuwen
Van Bynkesshoek
Van der Kessel
Van der Linden

SOUTH AFRICAN LAW

Jan Van Riebeck brought the Roman Dutch law in 1652. Despite English Occupation in
1806, this system remained in force in South Africa and was extended to the interior of the
country. SA law was strongly influenced by the English law. Various factors contributed to
this.
a. Judges and Magistrates versed in English law were imported in England.
b. Local jurists studied in England.
c. English Court Decisions were often referred to.
d. Many SA Acts were based on corresponding English Acts.
e. The final court of Appeal was the Privy Council in England.

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ZIMBABWE
Section 89 of the Constitution of Zimbabwe states:
“Subject to the provisions of any law for the time in force in Zimbabwe relating to the
application of African Customary Law, the law to be administered by the Supreme Court, the
High Court and by any courts in Zimbabwe to the High court shall be the law in force in the
Colony of the Cape of Good Hope on 10th June 1891 as modified by subsequent legislation
having in Zimbabwe the force of law.

This means that on the 10th of June 1891 all statutes then in operation at the Cape were taken
over and some are still in force e.g. General Law. It also means the wording of many of our
statutes in other countries especially south Africa and England are authoritative. So the
decisions of the courts of those countries on the interpretation of their statutes are of great
importance in interpreting ours.

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CHAPTER 2
Sources of law

SOURCES OF LAW
Statute/legislation
Customary
Judgments of the courts
Old authorities (common law)
Foreign law
Textbooks

1.LEGISLATION
Legislation can be defined as rules of law promulgated by a body or persons bestowed with
the power of creating rules of law. There is a variety of such bodies and persons in
Zimbabwe. Sometimes legislation is passed by a body such as parliament, which then
authorises a particular individual such as minister or the president to promulgate subordinate
legislation by means of regulations, proclamations and by-laws in terms of the parliamentary
Act. One example of an Act of parliament is Shop licences Act 40 of 1976, Companies Act,
Insolvency Act.

Section 3 of the Constitution of Zimbabwe states that the constitution is the supreme law of
Zimbabwe and if any other law is inconsistent with this constitution, that other law shall, to
the extent of the inconsistency, be void. Legislation must pass the constitutionality test.
Legislators don’t declare the whole act void but only those portions that are invalid. Rights in
the Constitution can be limited only by law of General application. Law of General
Application is law that the Society considers reasonable and justifiable. For example, killing
a human being infringing his right to life when acting in self defence is justifiable in a
democratic society.

1.1 SUBORDINATE LEGISLATION

1.1.1 REQUIREMENTS FOR THE VALIDITY OF SUBORDINATE LEGISLATION

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a) It must be reasonable
b) It must be impartial not discriminatory
c) It must be certain (clear) and not vague
d) It must be promulgated (proclaimed)
e) It may not be ultra-vires (not illegal or against community values)

2. CUSTOMARY LAW
These are unwritten Rules, practised over a long period of time derived from: habits of people
of a certain group/ community passed from generation to generation e.g. lobola. In Van Breda
v Jacobs 1921 AD330. A local custom amongst fisherman that once they have set their lines
on a beach where no boats are permanently stationed for purposes of catching a shoal of fish
seen moving along the coast, no other fisherman are entitled to set lines within any
reasonable distance in front of the already set, was held to be duly established by the
evidence as a valid custom.

2.1 REQUIREMENTS
a. It must be reasonable
b. It must be generally recognised and observed by the community
c. It must have existed for a long time
d. Content of the rule must be certain and clear

3. COMMON LAW
The –works of old Jurists are still authoritative. Justinian’s Corpus iuris Civilis, Hugo De
groot and Dutch Jurists inter alia van der Kessel. The Body of law provided by the old
authorities is known as common law.

4. FOREIGN LAW
After a fruitless attempt by a judge to find law in the above sources, foreign law is consulted.
It has persuasive authority. Countries that use Roman Dutch law as its common law are
considered first for purposes of finding solution to a legal problem.

5. TEXTBOOKS
No authority, only persuasive

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6. JUDGEMENTS OF THE COURTS/ CASE LAW
One legal counsel said to the Judge. “I think you will do as others have done in the same
case, or else we do not know what the law is”. A Judge explains his reasons by setting out the
facts of the case and the law he considers applicable to those facts. Another judge or legal
practitioner reading the judgment in the law reports will extract the essential reason for the
decision, the (Ratio-Decidendi) as opposed to observations on the law that were not essential
in the decision, or (Obiter Dictum). If facts in the present case are indistinguishable from
those in the previous case, then ratio ought to be applied. To understand Doctrine of
Precedence, one has to understand Hierarchy of Courts.

SUPREME COURT OF APPEAL

HIGH COURT

MAGISTRATES COURT

CHIEF/ HEADMAN

Only judgments of High Court and Supreme Court as reported in law reports can be used as
precedence by lower courts. Lower courts are not bound by Decisions of another.

RATIO DECIDENDI
Literally mean reasons for the Decision. That part of judgment that is binding. It is also
regarded as the basis or foundation of the Court’s decision or the legal principle which
necessarily led to the conclusion reached. This doesn’t mean that every sentence that a judge
says is binding.
The first step is to determine the material facts on which the judge based his decision. Ratio
Decidendi is conclusion reached by the Judge based on these material facts and by excluding
non- material ones

OBITER DICTUM
Obiter may be when.
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 i) Judge Postulates and answers a hypothetical question
ii) Raises an analogous case.
iii) Gives illustration
Any remark which is irrelevant to the immediate setting of dispute is obiter& does not form
part of Ratio Decidendi. It is not binding on subsequent courts. However it can be of strong
persuasive authority. Once applied by a later court, it becomes Ratio Decidendi and binding.

DISTINGUISHING
This is a process by which a judge decides that the ratio decidendi is not binding on him and
that he does not have to apply it in deciding dispute before him. It is thus a technique of
avoiding following earlier Ratio Decidendi.
For example
1. Earlier court formulated principle too broadly.
2. Facts of the later case are not covered by the principle.
3. Earlier Court overlooked a fact that would have led to a different R.D.
4. Material facts differ therefore not identical.

DOCTRINE OF STARE DECISIS

Court’s Decision create a precedent in other words, the decision should be followed in future
by:
Judges of the same court.
Courts of a lower order which is subordinate to that Court.
A court is bound by the Ratio decidendi of a decision, i.e. the legal principle laid down by a
court in its decision or order. Supreme Court is only bound by its own Decision and will only
deviate if it is convinced that it was wrong. High Court is bound by Supreme Court and may
not deviate therefrom. High Court is also bound by its own previous decision unless
convinced that a decision was wrong. A single judge is bound by decisions of a full bench (3
judges) and may not deviate therefrom.

ADVANTAGES OF STARE DECISIS

a) Creates equality- people are treated the same/ fair
b) Certainty of the law
c) Predictability
d) Uniformity
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e) Less time consuming
f) Convenience
g) Equality

DISADVANTAGES
1. It allows law to become a petrified forest of erroneous notions.
Once a decision is granted, it binds other courts no matter how wrong it is.
2. A strict Principle of Stare decisis prevents the development of Law to suit the changing
times and sentiments – law must be stable yet it cannot stand still.
3. It promotes brain drain.
4. Following a decision of a single case limits the minds or intelligence of other people
especially judicial officer.

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CHAPTER 3
INTRODUCTION TO THE SCIENCE
OF LAW
Divisions of Law
Public law and Private law.
Public Law – relationship between state and citizens and subjects
Private law- Citizens in their dealings with each other.

Public law Private Law

International law Family Law
Constitutional Law Law of Personality
Criminal law Patrimonial Law
Law of Procedure COMMERCIAL LAW

MEANING OF RIGHT
A right is any entitlement a legal subject has regarding a specific legal object and which is
protected by law. There can never be a right without an underlying object. There has to be a
legal subject- legal object relationship- in order to talk about a right.

WHAT ARE LEGAL SUBJECTS?

A legal subject is a human being or entity subject to law or a member of the legal community
to whom the law applies and for whose benefits the law exists. Every legal subject has legal
capacity that is the capacity to be the bearer of rights and duties. All legal subjects are called
persons and Juristic persons. In law concepts “human being and person are not synonymous”.
Person and legal subject are synonymous.
NATURAL PERSON
Human being
Every human being from birth to death is a legal subject and is a bearer rights and duties.

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JURISTIC PERSON
These comprise of entities other than human beings eg. Companies, universities,
municipalities and state. Holders of rights and powers are subject to duties. Although they are
persons, there are things that can only be done by natural persons eg Marriage and execution
of wills. It has a perpetual succession, even if members die, it continues to exist

Legal objects
A legal object is any entity which can be the object of a legal subject’s claim to a right.
Property, immaterial property, aspects of personality and performance can be objects of legal
subjects claim to a right.

Subjective Rights
Relationship between legal subject and legal object and between legal subjects and other
legal subjects can be termed a right. Following categories of juridical rights can be
distinguished when rights are classified according to the particular legal object.

1. Real Right
This is a right which a legal subject has to property such as a car, pencil etc. Real rights can
be classified as follows
a) Ownership- the most comprehensive real right
b) Servitudes (limited real rights)-Rights over someone’s property
Servitudes are divided into two
i. Praedial servitude
ii. Personal servitude

Limited Real Rights

i. Personal servitude
They confer on a person in his capacity the right of use and enjoyment of property of which
another is the owner eg usufruct.
ii. Praedial Servitude They confer on the holder in his capacity as owner of an adjacent
property a limited right to the property of another e.g. servitude of grazing right of way.

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iii. Mortgage & Pledge

These give the holder a right of security over property mortgaged or pledged. Mortgagor is
entitled to sell the property mortgaged or pledged if the mortgagee is still owing him.
Mortgage applies with regard to Immovable property, Pledge applies with regard to Movable
property

2. Immaterial Property rights/intellectual property

Fruits of intellectual endeavour, eg, authorship or inventions, subject to protection. Author or
artist’s right not to have work reproduced without authority thereby causing financial
prejudice.
If Intellectual or artistic efforts are not protected against piracy the incentive to invent or
create is undermined. Intellectual property law embraces copyright, patent and trademark
law. Basic objectives of law in these areas is twofold:
a] Provide ownership rights in respect of intellectual and creative work.
b] Provide framework for enforcement of those rights by remedies for their breach. Not
every idea or invention is protected.

Companies are faced with dilemma. Benefits of innovation are obvious but why innovate if
innovation can be replicated by competitors? Failure to innovate may lead to loss of
competitiveness in market place.

3. Personality Rights
These are rights relating to aspects of personality eg physical integrity, reputation of a person,
dignity and privacy.

4. Personal Rights
Rights to which some other conduct referred to as performance may be demanded from a
person
or refraining from doing something (interdict).

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CHAPTER 4

PATRIMONIAL LAW
A person’s patrimony consists of all his rights and duties which may be valued in money. it is
therefore, the sum of his assets and liabilities. In this case the relations involved are between
persons as regards their patrimony. Under Patrimonial law we have property law which will
be dealt with below.

LAW OF PROPERTY

INTRODUCTION
The law of property is concerned with the relation of persons towards material objects. The
relationships of persons towards property are controlled by means of granting and recognition
of rights over property. The nature and extent of legal power enjoyed over property depend
on the kind of real right held by that person. Different kinds of real right confer different
powers on their holders.

Real right of ownership gives the holder of the right wide powers to use the property, enjoy
it, sell it and dispose of it.

Pledge gives holder of the right only the rights to posses the property (which still belongs to
the pledgor as security for his claim against the pledgee. More than one real right can subsist
in the same property eg. A may have right of ownership over the farm, B, mortgage over the
farm, C a usufruct over the farm, D mineral rights in respect of the same farm.

A B

Accordingly holders of various rights have certain powers over one and the same property.

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The right of ownership is the cornerstone of all real rights.

The right of ownership

The right confers the most complete Power over property. However it does not confer
unlimited or absolute control, eg an owner may not do what he likes with his property. Public
law can restrict the right of ownership as well as rights of other people eg statutory provisions
which prohibit the division of land under certain circumstances. You cannot mine in your
own land without the permission of the state. Ownership is always restricted in the interest of
the community. An owner’s right may also be restricted by his neighbours right of ownership
e.g. owner of the land may not excavate his land in such a way that his neighbour’s land
subsides or curves in. Right of ownership, although comprehensive, it is always limited.

Right to property in the Constitution

In terms of the constitution, “property” means property of any description and any right or
interest in property. Every person has the right, in any part of Zimbabwe, to acquire, hold,
occupy, use, transfer, hypothecate, lease or dispose of all forms of property, either
individually or in association with others. No person may be compulsorily deprived of
their property except where the following conditions are satisfied.

(a) The deprivation is in terms of a law of general application;

(b) The deprivation is necessary for any of the following reasons

(i) In the interests of defence, public safety, public order, public morality, public
health or town and country planning; or

(ii) In order to develop or use that or any other property for a purpose beneficial to
the community;
(c) The law requires the acquiring authority

(i) To give reasonable notice of the intention to acquire the property to everyone
whose interest or right in the property would be affected by the acquisition;

(ii) To pay fair and adequate compensation for the acquisition before acquiring the
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 property or within a reasonable time after the acquisition; and

(iii) If the acquisition is contested, to apply to a competent court before acquiring

the property, or not later than thirty days after the acquisition, for an order
Confirming the acquisition;

(d) The law entitles any person whose property has been acquired to apply to a competent
court for the prompt return of the property if the court does not confirm the
acquisition; and

(e) The law entitles any claimant for compensation to apply to a competent court for the
determination of—

(i) The existence, nature and value of their interest in the property concerned;

(ii) The legality of the deprivation; and

(iii) The amount of compensation to which they are entitled;

and to apply to the court for an order directing the prompt payment of any
compensation.
(c) the law requires the acquiring authority—

(i) to give reasonable notice of the intention to acquire the property to everyone
whose interest or right in the property would be affected by the acquisition;

(ii) to pay fair and adequate compensation for the acquisition before acquiring the
property or within a reasonable time after the acquisition; and

(iii) if the acquisition is contested, to apply to a competent court before acquiring

the property, or not later than thirty days after the acquisition, for an order
confirming the acquisition;

(d) The law entitles any person whose property has been acquired to apply to a competent
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 court for the prompt return of the property if the court does not confirm the
acquisition; and

(e) The law entitles any claimant for compensation to apply to a competent court for the
determination of—

(i) The existence, nature and value of their interest in the property concerned;

(ii) The legality of the deprivation; and

(iii) The amount of compensation to which they are entitled;

and to apply to the court for an order directing the prompt payment of any
compensation.

Ownership and Possession

There is confusion over the terms. Ownership and possession are two different concepts in
law. A person who has the right of ownership over property is not necessarily the possessor
of the property. For example A, the owner of the car may lend it to B for a trip to Durban; A
has ownership of the car, B has possession. Another example, X moves out of his house so Y
can repair the house, X is the owner of the house, But Y is the possessor.

When does one have possession of property?

Possession has 2 elements
1. Physical control
2. Intention to possess

In order to have physical control over property direct and immediate control over it is not
required, for example , A locks his car but takes the keys with him, he has physical control
over the car although he is far away from it. An example to illustrate the absence of required
intent to posses is the following; If D holds N’s jacket for few minutes while he works on his
car, D has physical control over the jacket but does not have intention of possessing it
because he is not exercising the physical control in his own interest but in the interests of N.

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In other words, he is not holding the Jacket for himself but for someone else. D is not in
possession of the Jacket.

Acquisition of ownership
Ownership is acquired through;
1. Original method
2. Derivative method

1. Original method of acquiring ownership.

a) Occupation
If one seizes property belonging to no one with the intention of becoming its owner, one
acquires the right of ownership over the property eg where B catches a fish, he acquires right
of ownership over the property or picks up a pen one has abandoned. By occupation one
cannot become the owner of Property belonging to another. If Y loses his pen, he remains its
owner, and E will not be able to obtain ownership through occupation. If he abandons it, he
has no intention of being the owner, W can become the owner after Y has renounced his right
of occupation. Occupation is called an original method of acquiring ownership because the
new owner does not obtain the right of ownership from another but establishes an original
right of ownership.

b) Prescription
If you have possessed something openly for uninterrupted period of 30 yrs, you become the
owner. For example, A takes possession of a section farm by allowing his cattle to graze on
it, he may acquire ownership of that section, provided he has possessed it openly and as he
were the owner for an uninterrupted period of 30 years. Act previously unlawful becomes
lawful. Question is why is law allowing owner to lose his ownership? Law requires legal
certainty. If the owner allows another to take possession for a long period of time, the
impression is created to the outside world that the possessor is actually the owner. It is
original method of ownership because he becomes the owner after the original owner has lost
his right of ownership.

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2.Derivative Methods of Acquiring Ownership

Movable Property
Delivery
This method applies to movables. If A and B enter into agreements of sale, B acquires
ownership when the thing is delivered to him. Entering into a contract does not cause
ownership to pass. Delivery seals ownership. Immovable Property It must also be the
intention of the transferor to transferee that right to ownership be transferred and acquired. If
one party lakes intention then ownership won’t pass. If A believes he is borrowing B a car
and B believes he is being given that car, ownership won’t pass. It is a Derivative method
because transferee acquires his ownership from transferor.

When selling immovable property, Payment does not lead to acquisition of ownership. Only
when it is registered in transferee’s name in Deeds Office does ownership pass.

Forms of delivery.

a) Actual delivery (De manu in Manum)

Object sold is handed physically by seller to buyer.

b) Delivery with short hand (Traditio Brevi Manu)

The buyer is already physically in possession of the object sold and delivery takes place by
change of intention of Buyer and Seller. E.g. Buyer before concluding the deed of sale, rents
a car from the seller and later decides to buy the car. No giving back of the car by the buyer
to the seller is necessary to establish delivery. The buyer remains in possession of the car and
delivery takes place through the change of intention of the parties to the contract.

c) Constitutum Possessorium
Opposite of delivery with short hand. Delivery takes place through change of intention of the
buyer and seller but the seller remains, after contract has been concluded, physically in
possession of the object sold. E.g. S sells a car to P, but at the time S and P agree that S will

18
rent the car from P, therefore S (the seller) remains physically in possession after the contract
has been concluded.

d) Attornment
The object sold is in possession of a third party and delivery takes place through the change
of intention of the buyer and seller. Before the deed of sale is concluded the third party
concerned keeps the object on behalf of the seller, but after the conclusion thereof the
intention of the buyer and seller is that the third party keep the object on behalf of the buyer
e.g. a car is placed by the seller in possession of a panel beater for repairs and the car is sold
during this period of repair. Before the contract is concluded the panel beater keeps the car on
behalf of the seller, but after the transfer has been concluded the panel beater keeps the car on
behalf of the purchaser. Consequently delivery has taken place through the change of
intention of the parties to the contract. Mere notice to the third party of this change of
intention is sufficient and no cooperation of the third party in respect of this change of
intention is required. Vorster v Hodgeson [1902] 19 SC 439. Thus if the buyer is to have
good title in the merx, he must have ownership not just vaccuo possessio. All sales are
presumed to be for cash unless evidence clearly proves the contrary.

e) Symbolic Delivery
Delivery takes place when the seller places the buyer in possession of a symbol by means of
which the buyer gains control over the object sold.
E.g. a shipload of maize has been bought and the buyer is placed in possession of the bills of
lading to place him in control of the maize. Delivery thereof takes place fictitiously or
symbolically). Giving keys of the car.

f) Delivery through marking

Delivery takes place by marking the thing or things bought or sold. E.g. where part of the
flock of sheep is bought, the sheep forming part of the object sold can be marked by a yellow
mark on the hind leg. Delivery takes place as soon as the yellow mark is on the hind leg.
Delivery takes place as soon as the yellow marks are made on the hind legs of the sheep
concerned.
g) Delivery withy long hand
Takes place in that the object is pointed out by the seller to the purchaser with the intention
that ownership passes
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Protection of ownership and possession
Ownership is protected primarily by granting the owner the remedy known as REI
VINDICATIO. Owner can claim it from any person who is wrongfully in possession of it.

Owner Thief Third party

A B C

A can institute Rei vindicatio against C because he is the owner of the car. Owner can claim
damages if his property is damaged. Possession is also protected

owner B A takes it back

Borrower by force

If A borrows B his car and then after two weeks he decides to take it back from B, B can
institute an Action called the mandamant van spolie. In an action in which someone asks that
possession be restored, the court is not interested who the owner is. But the question is “was
the applicant wrongfully deprived of possession”? After restoration of possession A can
claim it by Rei vindicatio.

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CHAPTER 5
INTRODUCTION TO LEGAL
OBLIGATIONS
A legal obligation is a legal tie between legal subjects, recognised by law, which is created
because of certain legal facts (such as Contract or Delict) and which creates rights (personal
rights or claims) and duties which are recognised by law. Personal rights may come about
through
1. Delict
2. Contract
3. Unjustified enrichment
A legal obligation consists of two elements namely the right of the creditor to claim
performance (The right to insist that something be done or not be done)
AND
The duty of the debtor to perform accordingly. Natural obligations are those rights or duties
that are recognised but not enforced by law

Sources of obligations
A legal fact must exist before a legal obligation can be created. Legal facts are facts which
create, alter or destroy rights. Juristic acts are acts which the law gives effect according to the
intention of the parties (e.g. law gives effect to a contract of sale which the parties concluded
and intended to conclude. Non- Juristic Acts – are Acts to which the law gives effect
irrespective of the intention of the parties eg a claim arising from delict or unjustified
enrichment. Juristic Acts can be divided into unilateral act (acts for which only the
expression of the will of one party is required e.g. a will) and Multilateral act- where co-
operation of two or more parties is required e.g. where parties conclude a contract of sale.

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CHAPTER 6
Unjustified enrichment
A general equitable principle that no person should be allowed to profit at another's expense
without making restitution for the reasonable value of any property, services, or other
benefits that have been unfairly received and retained.

Although the unjust enrichment doctrine is sometimes referred to as a quasi-contractual

remedy, unjust enrichment is not based on an express contract. Instead, litigants normally
resort to the remedy of unjust enrichment when they have no written or verbal contract to
support their claim for relief. In such instances litigants ask a court to find a contractual
relationship that is implied in law, a fictitious relationship created by courts to do justice in a
particular case.

Unjust enrichment has three elements. First, the plaintiff must have provided the defendant
with something of value while expecting compensation in return. Second, the defendant must
have acknowledged, accepted, and benefited from whatever the plaintiff provided. Third, the
plaintiff must show that it would be inequitable or Unconscionable for the defendant to enjoy
the benefit of the plaintiff's actions without paying for it. A court will closely examine the
facts of each case before awarding this remedy and will deny claims for unjust enrichment
that frustrate public policy or violate the law.

In some circumstances unjust enrichment is the appropriate remedy when a formally executed
agreement has been ruled unenforceable due to incapacity, mistake, impossibility of
performance, or the Statute of Frauds. In certain states, for example, contracts with minors
are Voidable at the minor's discretion because persons under the age of majority are deemed
legally incapable of entering into contracts. But if the minor has received a benefit from the
other party's performance before nullifying the contract, the law of unjust enrichment will
require the minor to pay for the fair market value of the benefit received. If the adult used
duress or Undue Influence to induce the minor to enter the contract, however, the court will
deny recovery in unjust enrichment because the adult lacked "clean hands."

In other circumstances unjust enrichment is the appropriate remedy for parties who have
entered a legally enforceable contract, but where performance by one party exceeds the

22
precise requirements of the agreement. For example, suppose a homeowner and a builder
have entered into a legally binding contract under which the builder is to construct a two-car
garage. One day the owner returns to her residence and discovers that in addition to
constructing a two-car garage, the builder has paved the driveway. The owner says nothing
about the driveway but later refuses to compensate the builder for the paving job. The builder
has a claim for unjust enrichment in an amount representing the reasonable value of the
labour and materials used in paving the driveway.

Suppose, instead, that after completing half the job, the builder tells the owner that he cannot
finish the garage as originally agreed, but that he wants to be paid for the work he has done.
The owner balks at this demand, arguing that the builder has breached his contractual
obligations and is entitled to nothing. A minority of jurisdictions would allow the builder to
recover the reasonable value of his services, minus any damages suffered by the owner as a
result of the breach. A majority of jurisdictions, however, adhere to the rule that a party who
fails to perform contractual obligations has no remedy regardless of the amount of hardship
he might endure.

The doctrine of unjust enrichment also governs many situations where the litigants have no
contractual relationship. For example, the law finds an implied promise to pay for emergency
medical treatment that is neither requested nor consented to by a patient. In some
jurisdictions the law finds an implied promise to pay for life-saving medical treatment even
when a patient objects to receiving it. The law also requires parents to reimburse a person
who voluntarily supplies necessaries such as food, shelter, and clothing to their children. As
these examples demonstrate, unjust enrichment is a flexible remedy that allows courts great
latitude in shifting the gains and losses between the parties as Equity, fairness, and justice
dictate

23
CHAPTER 7
1.DELICT
A delict is an unlawful or wrongful act by a person (the wrongdoer) which causes another
person damage to person or property, or injury to personality and for which a civil remedy for
recovery of damages is available.

Difference between crime and delict.

i. The purpose of a delictual action is to claim compensation from the wrongdoer for the loss
or injury caused by him.
ii. The purpose of criminal law is to maintain order in the interest of the general public.

Elements of a delict
1. Act
2. Wrongfulness
3. Fault
4. Causation
5. Patrimonial loss or impairment of personality

Act/conduct
An act is described as a person’s conduct determined by his will. Where a person acts while
he is in a state of automatism or while in a trance or during an epileptic fit, the resulting
conduct is not determined by his will. Such a person cannot be held liable for the
consequences of his action. Conduct may take the form of positive conduct (omission-doing
something eg hitting someone with a brick) or negative conduct (omission-failure to do
something when one has a duty to act eg a policeman ignoring a gang of hooligans assaulting
a person).

Wrongfulness
Any infringement upon a person’s subjective right is deemed wrongful. It may be Real Right,
Immaterial property, Personality and personal right. It must be noted that there can be a clash
of rights where one protects his own right at the expense of another. Then it must be

24
determined whether the wrongdoer’s conduct was reasonable or unreasonable. Hence the
development of grounds of justification.

Grounds of Justification
a.Self Defence
Where a person protects his or another’s interests by staving off an unlawful attack or
imminent unlawful attack, in the process causing harm to the attacked, the former does not
act wrongfully. The Requirements for self-defence were discussed in the case of Exparte Die
Minister Van Justice: re S v Van Wyk 1967 1 SA 488 (A)
a. A wrongful attack by another person, launched with the purpose of infringing upon
the subjective right.
b. The attack must have commenced or be imminent but not yet completed.
c. The act of defence must be aimed at the attacker, although the initial attack does not
necessarily have to be
d. The act must not be more harmful than is necessary.

b. Necessity
A state of necessity empowers a person to infringe the right of an innocent party to protect his
own right or another’s right e.g. you break a window to save a little boy inside a burning
house. The purpose is to protect the interests of the perpetrator or of a third party against a
damaging situation.

Requirements
a. The state of necessity must be imminent or should already have commenced.
b. A person could protect his own rights or the rights of another during the state of
necessity.
c. Conduct during state of necessity will only be justified if it is the only way in which
the threatened interest can be protected.
d. The interest which is infringed upon in the state of necessity should not be greater than
the interest which is protected.

Example 2
A is in the garden, and is unaware of the facts that a poisonous snake is about to bite him,
B can crash tackle A to get him away from the snake. Should A break some of his teeth in
25
 the process he cannot claim delictually from B, as B acted in a state of necessity and did
not wrongfully cause A’s injuries.

c.Consent to injury
Where a person waives his rights to bodily integrity and consents to an injury being done
to him.

Requirements
a. The consent must be given as a conscious expression of the injured party’s will.
b. The consent must be given expressly or tacitly.
c. Injured party must have the serious intention to consent to the injury.
d. The consent must be given voluntarily and not under duress.
e. Although different points of view exist in this regard, it is required sometimes that the
injured party must have full capacity to act.
f. The consent must be lawful and not against the public interest or good morals.
g. The consenting party must be fully aware of the rights he is waiving.
h. The wrongdoer must act within the limits of the consent given by the injured party.

Example
If a patient consents to an operation, he cannot afterwards hold the doctor liable in delict
for the pain and suffering caused to him by operation.

d. Voluntary assumption of risk

The injured party merely expresses his willingness to subject himself to the risk and
subsequent injury. The injured party must have consented to run the risk. For example a
boxer decides to participate in a boxing match and accepts the risk of being injured during the
fight. If his opponent injures him, he cannot claim from his opponent in delict.

e.Provocation
It is when someone is threatened or incited towards injurious conduct by the actions of
another. The injured person, who provoked the other, forfeits his rights to claim damages.
The wrongfulness of the defendant is set aside.

26
3. FAULT(Blameworthiness)
Wrongdoer must be at fault. He is at fault if he acted intentionally or negligently. The
wrongdoer must have reached a sufficient level of mental development to be able to
comprehend the nature and consequences of his action. One cannot impute blameworthiness
to anyone without sufficient mental capacity. There are two stages in proving liability

Stage 1 Wrong Doer must have blameworthy state of mind. Insane people and children under
seven are not capable of having a blameworthy state of mind.
Stage 2 once established that he has blameworthy mind, it has to be established whether he
acted intentionally or negligently. Intention includes both knowing and deliberate infliction of
harm and cases where the main object is not the infliction of harm but recklessly engages in
some enterprise with realisation that the harm will probably or possibly occur.
Rape is also a delictual wrong based upon intentional wrongdoing. In M v N (1981) a woman
was awarded substantial damages for rape.
Regarding negligence, the conduct may still be wrongful if the wrongdoer’s behaviour does
not comply with the standard of care that the law requires of him. The test is an objective one
of a reasonable person. The courts have to determine how an ordinary, average, reasonably
careful Zimbabwean would have behaved in the same circumstances. If a reasonable man
would have exercised caution or acted more responsibly than the wrongdoer then fault is
imputed on the wrongdoer. If the wrongdoer was also negligent then there will be
apportionment of damages.

4. Causation

The loss or damage must be caused by the wrongful culpable act. There must be a nexus
between the act (commission or omission) and the damage suffered. Where this crucial link is
missing, the so called wrongdoer cannot be held liable in delict. In order to determine
whether a factual causal link exists, condition sine qua non test is used. If the unlawful
conduct is taken out of the equation and the result falls away, a casual nexus exists between
the Act and the result. A wrongdoer cannot be held liable for all the consequences of his
actions. Liability must be limited by determining whether or not legal causation also exists
between the Act and result.

27
 The present legal position is that the wrongdoer will only be held liable for foreseeable
damage for example a person sits in a train. While still in the station waiting for the train to
depart. He finishes his cigarette and throws the butt from the window. The butt falls on
explosive material stacked on the platform next to the train, which explodes with a great
bang. On the other platform, a porter is startled by the explosion and loses concentration of
his trolley which crashes into an old lady who falls into the path of an oncoming train. The
loss and damage incurred by the latter can only be recovered from the smoker if it was
foreseeable that his act would have such a result.

5. Damage or result
The result must be in a form infringement of any subjective right.

Delictual Remedies
1.Actio Legis Aquililiae
It is instituted to claim damages for percuniary loss caused by all forms of culpable conduct.
It can also be ceded to another person since it is concerned with recovery of patrimonial
damage to an estate.

Actio Iniuriarum
Satisfaction for the impairment of one’s personality can be claimed in the Actio
Incuriariarum. Purpose is to compensate for the intentional injury to one’s bodily and mental
integrity. Cannot be ceded to another.

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CHAPTER 8
LAW OF CONTRACT
CONTRACT DEFINED
For our purposes we shall content ourselves with a working definition of a contract: A
contract is a binding agreement, which the parties thereto create between themselves
intending that it be legally enforceable. Courts do no more than attempt to give effect to the
intention of the parties.

GLOSARY OF TERMS used in contracts

Performance
That to which the debtor binds himself to is called performance. Performance can consist of
positive conduct where debtor must do, deliver or pay something or –negative conduct such
as not doing business in a certain area for a specified period of time
Unilateral contracts
Where only one of the parties acts in the capacity of debtor and the other party only acts as
the creditor, the contract is a unilateral one eg a donation

Reciprocal contract
Where both parties act in the capacity of creditor and debtor at the same time.
Nominate contract
It is a specific contract like purchase and sale
Null and void contract
Where one or more of the requirements of a valid contract are absent. No contract and no
legal obligations come into being. When a contract is said to be null and void, it actually
means that no contract has come into being.

29
Voidable contract
Where a contract did come into being but it can be set aside because of a defect. the defect
might have been present at the time of conclusion of the contract. Where the parties do reach
consensus but consensus was obtained in some or other improper manner such as duress,
such consensus can be negated. Prejudiced party may however choose to uphold the contract
and is not obliged to have it set aside.

Natural obligations
Create obligations which are recognised but not enforceable. Contract is valid but not
enforceable.

Requirements of a valid contract

1. Consensus
2. Capacity to Act
3. Physical possibility
4. Legality
5. Formalities

30
CHAPTER 9
Consensus
Consensus is the meeting of minds between parties. Consensus is created if parties have the
following:

1. Intention to be contractually bound.

Parties must have serious intention to be contractually bound. If 2 friends agree to watch
Rugby match no intention to be bound exists. Each party must intend to be bound to perform
his duties and to hold the other party legally liable for rendering performance as promised.
Contract of sale agreement (eg) there is intention to create legal obligations.

2. Common intentions.
Parties Must intend same contractual commitments. Common intention with regard to rights
and duties to which they will be legally bound to agreement.

3. Making of intentions known.

Parties must declare their intentions to one another. The other party must assent to that
intention in some way or another. Done through offer and acceptance

Offer and acceptance

An offer is a declaration made by a person in which he indicates his intention to be
contractually bound and he sets out the rights and duties he wishes to create. An acceptance is
a declaration by offeree through which he indicates that he agrees to the terms of the offer
exactly as expounds in the offer.

Requirements of a valid offer.

1. Offer must be complete in the sense that it contains all the terms by which the offeror is
willing to abide as well as all the terms to which he wants to bind offeree.
2. Offer must include proposals regarding all the essentials of the proposed contract
If parties want to conclude a specific nominate crt eg Contract of sale), the offer must contain
stipulations regarding all essential characteristics of that specific contract.

31
3. Offer must be clear, certain and unambiguous.
Intended obligations must be stated unequivocally and unconditionally so that the rights and
duties intended are determined or ascertainable. Must not be vague and ambiguous. Offer
must be of such a nature that, it can be accepted without any further qualifications eg I am
selling a car at reasonable price.

4. Offer must be made with the serious intention of creating a legal obligation.
Offeror must have the intention to be legally bound to his offer, should it be accepted by the
offeree. Where X invites Y to a concert there is no intention to be bound.
An advertisement is a declaration which is made with the intention of inviting another party
to make an offeror to negotiate. An advert in the newspaper or price tag stuck to a product in
a self service shop does not as a general rule, constitute an offer. The customer who decides
to buy something makes an offer to the shop keeper at the till. Shopkeeper can decide
whether to accept the offer or not. The purpose of such an offer is to draw a person’s
attention to the possibility of the conclusion of a contract or to provide him with information.
The intention of the dealer will in each case determine whether his declaration constituted a
real offer or invitation to do business. (Crawley V Rex) 1909 TS 1106. A tender is not an
offer.

5.No formalities to be complied with.

Can be made verbally, in writing, expressly, tacitly, through words or conduct.
If law requires formalities as requirement for validity, the offer must comply with these
formalities to be valid. Offer must come to the actual knowledge of the offeree. Offer is
complete if offeree has knowledge of the offer and its contents.

Consequences of an offer
An offer is a unilateral act, no rights and duties are created

Termination of the offer.

a. Rejection of the offer by offeree.
b. If stipulated that offer is valid only for a certain period of time, it falls away if not
accepted within that period.
c. If before the offer has been accepted the offeror informs the offeree that he withdraws the
offer, offer is extinguished.
32
d. If the offeree does not accept the offer exactly as it is made but wishes to accept subject
to alterations, improvements eg of a house. This is tantamount to counter offer, offeror
becomes the offeree and offeree becomes the offeror. The original offer is extinguished.
Hyde v Wrench [1840] 49 ER 132. W offered to sell farm to H for 1000. H counter-
offered 950. W rejected. H purported to accept previous offer. W was no longer keen to
sell the farm. H sued W. Held: Counter-offer amounted to rejection of the offer therefore
no longer open to acceptance.

e. If either offeror or offeree dies before offer is accepted, offer falls away. De Kock v
Executors of Van de Wall [1899] 16 SC 463 offer of donation could not be accepted after
death of offeror.

f] Loss of contractual capacity. Contractual capacity lost through insanity, insolvency, etc.

Special offers

1. Options
It is an agreement between an option grantor and option Holder, in terms of which the option
grantor keeps for acceptance an offer for a certain period of time. The option creates rights
and duties in that the option grantor must keep a certain substantive offer open for the
exclusive acceptance by the option holder for a determined or determinable period of time. If
option holder does not accept the substantive offer within the specified time period, the
substantive offer is terminated because it is rejected and the option agreement is terminated
through fulfilment. The offer can be transferred from one person to the other. It Must be
distinguished from Preferential right. This is a right which the grantor of such a right gives
the holder of the right, in terms of which the holder has the opportunity to make or receive an
offer (Van Pletzen v Henning 1913 AD 82 and Boyd v Nel 1922 AD 414). Offeror bound to
keep option open for period agreed. Failure to keep option open amounts to breach for which
offeror can be sued.

33
2. Offer for reward

An advert for a reward constitutes an offer. Acceptance must be in Response to the Offer for
reward.The whole idea of the analysis in terms of offer and acceptance is to emphasise the
reciprocal nature of the relationship. This is not a problem with regard to bilateral contracts
where one party makes an offer to which the other responds with an acceptance, thus
identifying the existence of a contract and its terms. In the case of a unilateral contract, i.e. an
act in reliance upon a promise, it is necessary to show that a link exists between the act and
the request that it should be performed. Thus a party can hardly accept an offer of which he /
she did not know or had forgotten.

R v Clarke(1927) 40 CLR 227 Australian High Court. A reward has been offered for anyone
giving information which led to the conviction of those responsible for the murders of
policemen. Clarke gave information which led to such arrest and conviction. However, his
claim to the reward was resisted. Clarke's motive and intention in giving the evidence was to
protect himself and to clear himself of the charge of murder. Only after arrest, conviction and
appeal by the others, did Clarke think of claiming the reward. It was held that Clarke did not
act "in reliance upon the offer or with the intention of entering into any contract" - although
clearly, the convictions would not have come about without his evidence.

Isaacs ACJ points out in his judgment the difficult case of Gibbons v Proctor (1891) where,
by contrast, a policeman was allowed to recover a reward, although he did not know of the
existence of the reward when he sent off the information. He points out that in Anson on
Contracts it was stated that that decision was wrong, and that he (Isaacs) thought it was too.

So a mere coincidence between the act required and the doing of that act is not sufficient - it
requires some mental element connecting the two - and which we would call an intention -
although we also know of course that in many cases, the intention involved does not go
beyond the doing of the act itself - the intention to get on the bus, seldom involves an
"intention" to create a contract, but we have no problems construing the situation as if there
were such an intention. This is often done via the "objective test" idea - which was obviously
thought not to be appropriate to this type of situation.

Carlill v Carbolic Smokeball Co - Offer can be made to the world at large

(1893) Court of Appeal - discussed in previous lecture

34
The manufacturers of an influenza remedy in their advertisements said that if anyone used
their remedy and then caught flu they would be entitled to £100. When a claim was made
they said that there was no contract. It was held that an offer made to the world at large, can
become a contract with those who fulfil the condition.

The operation of this basic requirement may be affected by an implied assent to the existence
of a contract based upon an acceptance that was not communicated.

Requirements for a valid acceptance.

a. Can only be made by the offeror (except in public offers)
b. Offeree must have serious intention to be bound to his acceptance.
c. Acceptance must be clear, certain and unambiguous
d. Contents of the acceptance must correspond with the contents of the offer.
e. Acceptance does not have to comply with any formalities.
f. Acceptance only complete when the offeror is notified.

Legal Consequences of acceptance

Acceptance leads to consensus and conclusion of contract, should other requirements for a
valid contract also be met. It is necessary to determine exactly where and when a contract
comes into being. So that one can determine which court has jurisdiction over a dispute
regarding the contract.

JURISDICTIONAL ISSUES
Time and place for conclusion of CONTRACT.
Where parties are in each other’s presence, no problem the contract would be concluded at a
place where they conclude the contract. Problems arise if parties are not in each other’s
presence. Eg the offeror is in Harare and offeree in Bulawayo eg. A who lives in Harare
telephones B in Bulawayo and offers to Buy B’s Car. They negotiate the price and eventually
agree on a certain price. The question can be asked whether the contract was concluded in
Harare or Byo. To solve this problem certain theories exist.

35
a) Declaration Theory
In terms of this theory, Contract comes into existence at the time the offeree voiced or
declared his acceptance of the offer. This does not mean that the offeror received notification
of the acceptance. The offeror might be bound before he knows of the existence of a contract.
This theory has shortcomings

b) Expedition Theory.
Contract concluded where and when the acceptance made by the offeree is dispatched or
expedited to the offeror. This applies to real postal contracts. The contract is concluded on the
day the offeree posts the acceptance. In Cape Explosive Works v SA Oil and Fat Industries
Ltd. 1921 CPD 241 SA
Oil and Fat Industries [SAOFI] wrote letter to Cape Explosive Works [CEW] [Cape] offering
to sell certain quantity of glycerine. CEW posted letter of acceptance on 14/7/16. Letter
received by SAOFI. Became necessary to determine where contract was concluded to
determine which court had jurisdiction to hear dispute. Held that the contract concluded in
Cape where letter of acceptance posted.

c) Reception Theory
Contract is concluded where and when the offeror receives the acceptance and not necessarily
takes cognizance of the contents of the acceptance.

d) Information Theory
Contract concluded where and when the offeror receives notification that his offer has been
accepted by the offeree. In the previous example, Contract comes into existence in Harare
where he learns of B’s acceptance.
Factors affecting consensus
1. Misrepresentation
It is a false statement of fact that something exists while in actual fact it doesn’t or an untrue
statement concerning an existing state of affairs which is made by one party to the other with
the intention of inducing the other party into concluding the contract. Can be made expressly
or by conduct. Even concealment of facts constitutes misrepresentation. This would be the
case only if presenter had a duty to make certain relevant statements eg in insurance
contracts. Misrepresentation renders contract voidable, (election). A contract will be voidable
as a result of misrepresentation if following requirements are satisfied
36
1. Misrepresentation must be made by one party to the other contracting party.
2. Misrepresentation must be made during negotiations preceding the conclusion of contract.
3. misrepresentation is unlawful even if its innocent
4. Misrepresentation must have induced the contract as it stands.
The reason for conclusion of contract was because of misrepresentation.

Misrepresentation must be distinguished from what is known as "mere puffs" or simple

commendatio [i.e. praising one’s own merchandise].
In Naude v Harrison 1925 CPD 84, defendant [D] who was selling a house told plaintiff [P]
that the house in question was "well built". P bought the house and discovered that the walls
were cracking and sued D for misrepresentation. Held the statement that the house was "well
built" not a misrepresentation but mere puffing
In contract of sale, failure to disclose latent defect in merx, of which seller is aware amounts
to misrepresentation. In Dibley v Furter 1951 [4] 73, P bought a piece of land from D. D
knew that the piece of land in question had been used as a graveyard but did not disclose this
to P.

3 Forms of misrepresentation
(i) Intentional misrepresentation.
Statement made with intention of inducing a contract. Misrepresenter knows that he is
misleading the other party. Party induced to enter into the contract may claim damages.

ii) Negligent Misrepresentation

Statement made negligently to induce a contract. A person neglects to find out the truth
himself and makes a false statement. If a person makes a statement he believes to be true
without taking steps a reasonable person would have taken in the circumstances to satisfy
himself that the statement was the truth. Aggrieved party may claim damages regardless his
choice.

iii) Innocent misrepresentation

Not Fraudulent or negligent but one makes the misrepresentation without knowledge of its
truth. the innocent misrepresenter is not liable for damages.

37
2.Duress
Duress can cause a person to do something which he normally would not have done. If
someone is placed under duress with the intention of forcing a contract and he is in a mental
state of contractual incapacity, no contract exists. Renders the contract voidable

Requirements
1. Other party must have been responsible for the duress.
2. Duress must have caused the conclusion of the contract.
3. Duress must consist of a wrongful threat of damage or harm
4. The contract must be prejudicial to the party under duress.
5. The threat must be of an imminent or inevitable evil.

3.Undue influence
When a person exercises his influence over another which leads to the conclusion of a
contract eg where a doctor persuades a patient who is dying to conclude a contract which is
prejudicial to the patient.

Requirements
a) One party to the contract must have obtained an influence over the other party to the
contract.
b) Influence must have weakened the prejudiced party’s resistance and rendered his will
pliable and open to manipulation.
c) Influence must have been used in an unscrupulous manner.
d) The influence must have convinced the prejudiced party to conclude a contract to his own
detriment.
e) The influence must have convinced the prejudiced party to reach consensus which he
would not have reached had he had the normal freedom of will

4. Error/mistake
Definition
Error is a misunderstanding or a misconception by one or more of the parties regarding
certain facts, events or circumstances.
In law we have:
a] Unilateral mistake where one party to the contract is mistaken and the other is not
38
b] Mutual Mistake where both parties are mistaken about each other's state of mind.
c] Common Mistake this occurs where both parties are of one mind and share the same
mistake.
Effect of Mistake
If both parties labour under a material mistake = no consensus and no contract.
In order to temper the harshness of law, parties are held to their declaration of intention
unless the circumstances are such that the mistake is reasonable . If unreasonable the contract
is void.

Conditions to be met before a mistake will render a contract void.

1. Mistake must relates to a fact a legal rule or principle
2. That fact or rule/ principle is material.
3. Mistake (whether of fact or of law) is also reasonable.

1. Must relate to a fact or to legal rule or Principle.

Example of mistake in law.
A pay B $ 2000 under the mistaken belief that he owes the money to B (no obligation). A
mistake in law or fact will only invalidate a contract if it is considered to be excusable in
circumstances.
2. Mistake must concern a material fact, legal rule or principle.
Mistake which are material and can exclude consensus can be misunderstanding with
respect to identity eg a phones and gives B a job who answers the phone while A is under the
impression he is talking to C and offering C a job-error in persona no consensus. Mistake
concerning content of intended contract voids the contract. X is under the impression that he
is making an offer to buy y’s house in Cape town but Y is under the impression that the offer
is being made to buy a house in Durban-error in negotio

Error in corpore refers to a mistake involving the identity of a particular object. For
example, if a person buys a horse believing it to be the one that s/he had already examined
and ridden, when in fact it is a different horse this amounts to error in corpore
Also there’s a mistake with regard to interpretation of the law eg ownership of immovable
property.

39
Error in substantia- mistake as to the quality of the thing.

Mistakes not material

Error in nominee
Error in motive

3. The mistake in fact or law must be reasonable

Mistake will be reasonable if the reasonable man in the circumstances would be mistaken eg
A who suffers from a hearing problem is under the impression that B is offering only R100
000 for his bicycle in fact B is offering only R100. Although there is no consensus A’s error
cannot be accused since a reasonable man would not simply assure that he would obtain such
a high price for an old bicycle.

No matter how material the mistake is, it will not entitle the mistaken party to repudiate the
contract if it was due to that party's own fault. Acacia Mines Ltd v Boshoff 1957 [1] 1 SA 93.
A distinction needs to be drawn between a material mistake and a fundamental mistake. A
mistake is fundamental if its very existence renders agreement non-existent to the extent that
no contract could be said to exist at all. Such a contract is void ab initio. In Maritz v Pratley
1894 [2] SC 145 a mirror and a mantelpiece were placed on top of the other at an auction.
The two were however being sold by the auctioneer as separates lots. P made a bid on them
in the mistaken belief that the constituted one lot [he was buying both]. P refused to take the
mantelpiece without the mirror and M sued him in breach of contract. It was Held that there
was no sale since there was no consensus on the subject matter of the sale.

40
CHAPTER 10
CAPACITY TO PERFORM JURISTIC ACTS
Capacity to perform juristic acts
Every legal subject has legal capacity. Every legal subject bears rights and duties. Not every
person who has legal capacity has capacity to act. Capacity to act refers to the capacity to
perform juristic acts, to participate in legal intercourse and to conclude valid transfers. Only
natural persons are capable to enter into juristic acts. A company cannot enter into juristic
Act. A natural person must perform juristic action of the company.

Factors Affecting Capacity

Age
Capacity
Influence of alcohol/drugs
Insolvency
Prodigality

1.Age
Majority
18 Years and older people are capable of entering into contracts. Have full capacity to Act.
Minor
obtains full capacity to act upon marriage.

Minority
0-7
8-17
Under the Age of 7
No capacity to enter into contracts. Cannot even accept offer of donation. If a minor wants to
enter into legal intercourse he must be assisted by a guardian. If he contract is detrimental to
him/her then he can change the contract within 1 year from the date he became a major, In
Zimbabwe the father of the child has guardianship over the child. For children out of
wedlock, the mother is the guardian. Spouses may exercise these rights independently of each
other. However consent of both parents is required on these contracts.

41
a. Contract of marriage
b. Adoption
c. Removal of the child from the republic
d. Application for passport
e. Alienation or encumbrance of immovable property or any rights of immovable property
which belongs to the minor child.

Minor over 7 years

Limited capacity to act. May conclude contracts which are exclusively to his benefit. Only
those contracts where he incurs rights and not duties. Eg donation

1.Special situations –Contract binding upon minors

a.Tacit emancipation
If a minor’s legal guardians permit him to carry on a trade or occupation on his own account
he acquires full legal capacity in respect of the trade or occupation. A general consent,
express or tacit must be given by the parent / guardian which entitles the minor to act in
certain economic spheres minors has full contractual capacity for all juristic acts performed in

these spheres. Consent can be revoked any time. In Dama v Bera 1910 TPD 928 an Indian
girl who was a minor had been earning her living as a servant for on five years. She lived
with her parents but retained control over her income and paid a certain amount to them for
board and lodging. Following a wage dispute with her employer the question arose whether
she had legal capacity to represent herself. Held: She was tacitly emancipated and could sue
her employer for the wages due to her.

In Grand Prix Motors v Swart 1976 [3] SA 221 the respondent whilst she was an 18 year old
student nurse had entered into a hire-purchase contract to buy a car unassisted by her
guardian. She paid a portion of her purchase price in instalments and then returned the car
being unable to continue the payments. Soon thereafter she got married and claimed
repayment to her of the amount she had paid under the hire-purchase contract as she
contended that at the time, she was still a minor and the contract was therefore not binding
upon her. The appellant led evidence establishing that at the time she was living in a student
hostel and spent her salary as she saw fit. Her parents were divorced and neither of them had

42
any say in how she spent her money. They argued that on the basis of these facts the
Respondent was tacitly emancipated at the time and was therefore bound by her contract.
Held: The respondent was not tacitly emancipated hence was not bound by her contract. It is
clearly risky to contract with minors.

a. Minor pretends to have attained Majority.

He is bound to his acts as if he had really attained majority at the time the Act was performed.
c) Where minor obtains rights and not duties eg contract of donation
d) Where minor acts with consent or assistance of parent / guardian
e) Where the guardian acts on behalf of the minor.

Restitutio in integrum.
If a contract is concluded by or on behalf of the minor and is prejudicial to him, minor
entitled to restitutio in intergrum. Contract set aside and parties entitled to be placed in the
position they were in before conclusion of the contract.

In the following 3 instances, minor may not claim restitution.

a. Where at the time of performance of the juristic Act, the minor fraudulently pretended to
be a major.
b. Minor ratifies the act after attaining majority. Ratification can take place expressly or by
conduct.
c. Where the action has prescribed.

Contracts not binding upon minors

a) Contract which minor concludes without necessary assistance in spite of his

unlimited capacity to act.
If guardian ratifies before the minor turns majority or himself after acquiring capacity. Such
ratification renders minor liable. Contract entered into by the minor without necessary
assistance is not enforceable as against minor. Minor does not incur liabilities against the
other contractual party. Unless contract is ratified it is unenforceable against the minor, not
even after minor has obtained majority. Once guardian has given his assistance he has by
implications ratified the contract rendering it enforceable the minor’s promised performance.

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If minor institutes action against major for payment before delivery major can raise the
defence that he need not pay until minor performs.
The remedy of the major = unjustified enrichment-minor must return what remains in his
possession when action is instituted.
i) If the minor has recklessly squandered full amount he cannot be sued on the ground of
unjustified enrichment because there’s nothing left and he is no longer enriched.
ii) If he has bought a luxury item, he has to surrender it or its value.
iii) If he used money to pay or provide essentials for which his guardian normally would have
to pay the minor’s guardian will be liable. Guardian would have been enriched.

b) Marriage
Marriage also affects capacity. Zimbabwean marriages are out of community of property.

i. Marriage in community of property

Assets joined – separate assets and liabilities are consolidated so that there is only one
common joint estate. In terms of Ante-nuptial contract, parties who do not want a joint estate
must stipulate that their marriage will be out of community of property and without
community of profit and loss. Each spouse retains his separate estate and each one has
capacity to act in respect of his own estate.

ii. Agreements entered into by a spouse married in community of property

Each spouse has full capacity to act with regard to joint estate. One can sell, dispose and
incur debts without the consent of another. Certain contracts require consent of both parties
eg sale of immovable property or burdening property. These need written consent of another.
If 3rd party does not know whether a written consent was issued, the contract is valid

c) Mental Deficiencies
A mentally deficient person is not able to understand and appreciate the nature or
consequences of his conduct such that he cannot make rational decisions or manage the
particular affairs. The contract is void. Curator is nominated by High Court. The test is
whether the person was normal or mentally deficient at the moment of concluding contract. If
it is concluded during lucidum intervalum (moment of sanity) = valid. Before certification or
appointment there is a presumption of normality and of capacity to Act. After certification,
there is presumption of incapacity.
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d) Influence of alcohol or Drugs
A person who is in such a state of intoxication caused by alcohol or drugs to such an extent
that he does not appreciate the nature and consequences of his actions or unable to control his
actions is incapable of forming his will ie he is incapable of performing juristic acts. There
is a presumption of capacity though. The defendant will have to prove that he had no
capacity. He who alleges must prove.

e) Prodigals
A prodigal is a person who squanders money in an irresponsible and extravagant manner.
High Court may on application by an interested 3 rd party, declare him a prodigal. A curator is
appointed. He can only enter into agreements where he derives advantage and not liability
can be entered into.

f) Insolvency
If a person’s estate is sequestrated as a result of insolvency his capacity to act will be
influenced by certain provisions of insolvency Act. After sequestration, estate vests in the
master then trustee. After sequestration he loses capacity to Act with regard to the insolvent
estate. Any attempted agreement to dispose of such assets= not valid. May not enter into
contract having an effect on assets of insolvent estate without permission of his curator. The
contract is voidable at the instance of the curator who has the power to ratify the contract.
May accept any position as employee without permission of the curator. May not be a
director or bank manager

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CHAPTER 11
Physical possibility of performance
Performance to which the parties have agreed must be capable of delivery. If object of
performance does not exist at the time of conclusion of the contract, no contract comes into

existence. Eg the cow which A has exchanged for B’s horse died the previous day.

3 forms of impossibility of performance

1. Impossibility at the time of entering into the contract.
No contract comes into existence.
2. Becomes impossible after conclusion of contract.
Contract comes into existence but terminated for impossibility (Supervening impossibility)

3. Made impossible by the debtor after conclusion of contract

The contract remains in force. Debtor commits breach of contract. It is required that
performance must be objectively impossible i.e. must be impossible for anyone according to
general human experience to perform in accordance with the contract. If debtor finds it
difficult or inconvenient to perform it will not be treated as impossibility . Eg V lets his to T.
without their being aware of it, the house was destroyed by fire the previous day. No contract
because of impossibility. If it’s subjectively impossible eg where S sells a thing to P. Before
delivery to P, he sells it to T for a higher price and delivers the thing to T. T acts in good
faith. The Contract between S and P is valid. P will be able to claim the thing from S, and S is
unable to deliver it. P can claim damages from S on the grounds of breach of Contract.

Performance must be determined or determinable. Performance will be determined if parties

expressly mentioned the performance in this agreement. Parties agree that it will buy the cow,
daisy from V against payment of R500. Identify of a cow as well as the amounts payable are
specified and both performances are determined.

Determinable

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If parties agree on a criteria or formula to identify the performance or if they agree that a
specified person will determine the performance. E.g. if parties agree K will buy the 1 st
heifer to be born on V’s farm, at a price to be determined by the outsider Z, the parties have
laid down a criteria to determine the subject matter of contract and a method of determining
price.

Alternative and generic obligations as examples of determinable performance

Alternative
A party may select the performance from 2 or more different alternatives eg either of the 2
houses. E.g. A has 2 houses he wants to let to B. the parties agree that A may elect which
house he will let to B and that B will rent that house. As soon as A makes a choice the
performance is determined. As soon as he has exercised his choice, performance is no longer
determinable but is determined.

Generic obligations
E.g. A agrees with B to buy a cow from B’s Jersey studs at a particular price, the
performance is determinable and the contract valid.
The election lies with the debtor (B) to select the particular object from the genus or kind.

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CHAPTER 12
LEGALITY
Contract must be lawful. It must not be contrary to public policy. If the contract is contrary to
legislative provisions or common law rules then it is unlawful. The nature of any contract and
the obligations imposed by any contract should be lawful

Consequences of an illegal contract

Contract is void. No obligations arise from the contract. Exturpi causa non oritur actio( no
one can benefit from a scandalous cause) is applicable. If money has been paid but delivery
has not taken place, the par delictum rule says, he who is in possession has a stronger right.
he is not obliged to deliver the object nor repay the money to the seller. If an athlete agrees
with a pharmacist to purchase oxandrolone tablets (anabolic steroids) and pays $1000 in
advance, the contract will be void as it contravenes section 22A of the medicines and related
substances Control Act. If the pharmacist refuses to hand over the tablets, the athlete will
neither be allowed to claim delivery of the tablets nor claim return of his money. if the
pharmacist delivers fake tablets then he cannot be able to claim for breach of contract.

Case on legality
Muguti v Uboxit Worldwide PVT LTD & others 2010 (1) ZLR
In July 2008, the defendants 12 September contracted with a freight company to transport
certain consignments from Zambia for US$6 500 of which after payment of the deposit, the
sum of US$3000 remained outstanding. At the time the contract was entered into, the official
currency of Zimbabwe was the now defunct currency. As the contract price was reflected in
USdollars, the contract was in contravention of the exchange control regulations,1996, and
thus unlawful.

The plaintiff’s claim was dismissed. In dismissing the claim, the court stated that in the
absence of evidence, court could not hold that that the freight services were so out of
proportion with the payment made for such services that it should interfere by relaxing the
rule operating against the contract.

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It was also stated by the judge that the law applicable to illegal contracts is quite clear. Where
the contract has not been performed, the courts will not compel performance by either party
to the contract. The rule is absolute and admits of no exceptions, the courts will relax the pari
delicto patior est condition possidentis rule to do simple justice between parties.

Contracts contrary to public policy

If a contract offends the public’s perceptions of justice, will be void
Common example is restraint of trade. In general, restraints are valid in our law provided that
they’re reasonable. A restraint is reasonable if it protects a substantive interest. If it is
unreasonable, it will be contrary to public policy

REQUIREMENT 5

Formalities

No formalities in general. if parties agree that the contract has to be in writing then it has to
be reduced to writing.

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CHAPTER 13

CAVEAT SUBSCRIPTOR RULE

LET THE SIGNOR BEWARE

A well known and established principle of our Law is summarized by the Latin maxim caveat
subscriptor which translated into English, means “Let the signor beware.” Simply put this
means that when a party to a written contract signs it, he is presumed to be aware of all the
terms and conditions of the contract, and is bound thereby. It will not, in general terms, avail
him to subsequently protest that he was not aware of the offending term or that he signed the
agreement without understanding the meaning and implication of the offending term, or that
the inclusion of the offending term is grossly unfair to him.

Many cases dealing with this principle have come before our Courts and, for the most part,
our Courts have applied this principle strictly and have not come to the aid of the Party
seeking not to be held bound by the offending terms and conditions of the Contract. One such
case which did come to our Courts dealt with this principle. The facts are as follows:

1.Mr A checked himself into a private hospital in order to undergo surgery for a medical
problem bedeviling him. He presented himself at the reception office and was presented with
a document which he was required to sign before being shown to his ward. This document
was the contract governing his stay in the hospital and set out the charges he would have to
pay for his stay in the hospital. One such clause provided that should any mishap befall Mr A
whilst in the hospital causing him to suffer any physical harm, the hospital would not be
liable to compensate him for the harm befalling him, irrespective as to how the mishap
occurred. It provided that if the mishap was caused by any act on the part of anyone
employed by the Hospital, no liability would attach to the Hospital to compensate him.

2.Upon being presented this document, Mr A glanced at it, signed it, and was shown to his
ward.

3.During Mr A's stay in hospital and after the surgery was performed on him, and whilst
recuperating, he needed to go to the bathroom. At this stage he was still under sedation and

50
the nurse advised him that it was in order to walk unaided to the bathroom. On route he had a
fall and sustained serious injuries.

4.After his discharge from hospital, Mr A instituted an action against the Hospital in the
Transvaal Provincial Division in which he claimed compensation from the Hospital alleging
it to be liable on the grounds of the injury having been caused by the negligence of the Nurse.
The negligence of the nurse was not denied by the hospital, but it asserted it was not liable by
virtue of the existence of the clause in the written contract rendering it not liable for any
injury sustained while Mr A was in the hospital irrespective as to how the injury was caused.

5.Mr A claimed to be unaware of the existence of this clause, he did not spot it when reading
the document presented to him, and stated that had he been aware of it, or had his attention
been drawn to it, he would not have signed the contract with the inclusion of that clause. In
support of his contentions he led evidence, and it was not disputed by the Hospital, that when
presented with this contract the attending admissions Clerk did not draw its existence in the
contract to his attention.

6.The Learned Presiding Judge held that, whilst acknowledging the existence in our law of
caveat subscriptor, the offending clause and its implications were somewhat harsh and that
there existed a duty on the Hospital to ensure that its admission Clerk specifically drew the
existence of this clause to the Patient. Because it failed to do so he held the Hospital liable to
compensate Mr A for his injuries.

7.However this did not end the matter. The Hospital took this decision on Appeal to the
Supreme Court of Appeals which delivered a judgment holding that there was no duty on the
part of the Hospital to ensure that its admission Clerk specifically drew the existence of this
clause to the Patient. There was, it held, a duty on the part of Mr A to read the Contract,
understand it, and to sign it only once he agreed to be bound by the terms and conditions
contained in it. If Mr A did not read the contact through properly and carefully he should
have refused to sign it. Once he affixed his signature to the document, he was held to be
bound by its terms and conditions. The Court once more entrenched the principle of caveat
subscriptor .

8.It is observed that had Mr A informed the Admissions Clerk his unwillingness to sign the
contract as presented to him because of the inclusion of this clause, it would have been most

51
unlikely that the Admissions Clerk would have been vested with the authority to delete it
from the Contract. Moreover, it is observed that being understandably anxious about the
surgery Mr A was to undergo, it is unlikely that he contracted with the hospital on an equal
footing with it in that on protesting his dissatisfaction with that clause, he would have most
likely been informed that if he refused to sign the contract in the form presented to him, then
he would not have been admitted to the Hospital for the surgery he had to undergo. However
this point was not dealt with by the Supreme Court of Appeals.

TICKET CASES
In general there are three questions to be asked;
1. Did the holder know that certain words appeared on the contract-
2. Did the holder know that certain words referred to certain terms of the contract
If the answer to both these questions is yes, the holder of the ticket is held liable to such
conditions. If the answer is in the negative, the following question is asked
2. Did the party issuing ticket do everything in his or her power to draw the attention of the
holder of the ticket to the fact that the words on the ticket refer to terms of the contract.

In contract law, ticket cases are a series of cases that stand for the proposition that if you are
handed a ticket or another document with terms, and you retain the ticket or document, then
you are bound by those terms. Whether you have read the terms or not is irrelevant, and in a
sense, using the ticket is analogous to signing the document. This issue is an important one
due to the proliferation of exclusion clauses that accompany tickets in everyday transactions.

The case of Parker v. The South Eastern Railway Co (1877) 2 CPD 416 illustrates restrictions
on this concept:

 Knowledge of writing and of terms: If the recipient of the ticket knew that there was
writing on the ticket and also knew that the ticket contained terms, then the recipient
is bound by the terms of the contract.
 Reasonable person: If the recipient did not know of the existence of the terms, then
the court will consider whether a reasonable person would have known that the ticket
contained terms. If that is so, then the ticket-holder is bound by those terms; if not,
then the court will return to the general test of whether reasonable notice of the terms
was given.

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The test of whether a document fits within the description of a ticket is an objective test, that
is, whether a reasonable person in the position of the ticket-holder would perceive it to be
contractual in nature. For instance, if exclusion clauses accompany a docket, it may be held
that it is not contractual in nature since it is just a receipt.

Furthermore, Interfoto Picture Library Ltd v. Stiletto Visual Programmes Ltd [1989] 1 QB
433 held that if a party wishes to incorporate onerous terms into a document that is to be just
accepted by the other party, reasonable notice must be given to make it a term of the contract.

Other ticket cases include:

 L'Estrange v Graucob [1934] 2 KB 394

 Olley v Marlborough Court [1949] 1 KB 532
 Thornton v. Shoe Lane Parking [1971] 1 All ER 686

EXCLUSION CLAUSES

Exclusion clauses are clauses, usually written down, that say that one party to the contract
will not be responsible for certain happenings. For example, if you join a gym, it is common
for the contract to say that the gym owner will not be responsible if you are injured while
exercising. If you arrange to park your car in a public carpark for a fee, the owner will often
seek to include in the contract a provision that they will not be responsible for damage to
your vehicle, or theft of goods from it, while it is in the carpark.
These clauses can be valid, as long as:
 they have been properly included in the contract and
 are not contrary to law.
To be properly included in the contract, the clause cannot be tacked on after the contract has
been made. If there is a signed contract containing the clause, this will usually have the effect
of including it. If there is no signed contract, but there are printed documents or signs posted
stating the terms, these can be included in the contract if they are brought to your attention
before the contract is made.
For example, a driver entering a car park who takes a parking ticket from a machine is only
bound by terms which are brought to their attention before taking the ticket. This is because
the contract is formed when the ticket is taken. The car park owner cannot rely on an
exclusion clause printed on the back of the ticket if they did not do anything beforehand to
make the driver aware of it, for example, by prominently displaying the exclusion clause at a
53
point before the ticket is taken. If the car is damaged due to insufficient care by the parking
company, it will be liable despite the exclusion clause [Thornton v Shoe Lane Parking Ltd.
(1971) 1 All ER 686].
What are reasonable steps to take in order to draw a condition to the notice of a consumer
will vary from case to case. Although most car parks now have printed signs in front of their
ticket windows stating that they accept no responsibility for cars left on their premises,
(which probably makes it an exclusion clause that is a term of the contract) there are still
ways in which the effects of these clauses can be avoided.
The exclusion also has to be legal. There are some important obligations to a consumer that
are placed on a trader and these are implied by statute into consumer contracts and cannot be
excluded.
Courts always give exclusion clauses the narrowest reading possible, and where there is any
doubt the interpretation most favourable to the consumer is adopted. An exclusion clause will
generally not cover a breach which occurs outside the 'four corners' of a contract, such as
where a trader does something that was not authorised by the contract.
Where a trader has attempted to limit or exclude liability of an implied term a consumer
should seek legal advice as the law on this point is both complex and uncertain

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CHAPTER 14
Terms of contract
A term is a provision imposing one or more obligations to act in a specific manner or refrain.
It defines the contractual obligations between contractants. Or it stipulates time when or the
circumstances in which the obligations either become enforceable or are terminated, for
example: The car will be delivered after payment of the full price.

Different ways of incorporating terms into a Ctr.

1.Express terms
Articulated declarations of intent
A term is express if it is stated in so many words, whether in writing or orally.

2.Tacit terms
Not been expressed in words but is based on the parties’ true intentions or their intentions as
imputed by law. Based on assigned intent in respect of a given situation they had not
bargained for. Inferred by court from expressed term, and surrounding circumstances or trade
usage.
The test: what the parties would have answered if, at the time of concluding the contract,
someone were to ask them what the position in respect of a specific case or problem would
be.
If both parties were to answer that the position is the same as that expounded in the alleged
tacit term, then a tacit term is established eg. One enters into a public taxi to town, although
there is no express term about the taxi fare, It is a tacit term that the passenger has to pay and
the driver expects payment.

3) Implied terms
Term not expressed in words but can be incorporated into the Contract by operation of law.
When Contract has been classified as a particular contract, law imputes certain consequences
to the Contract. for example guarantee against latent defects forms part of every Contract of
sale unless excluded by parties. Usually referred to as Naturalia.

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4) Essentialia, Naturalia and Incidentalia
Are terms which are essential for the classification of contract as belonging to a particular
class of contract eg essentials for sale: the seller must deliver the object sold and buyer to pay
sum of money. If not, it can’t be a Contract of sale.

4.1 Naturalia
Terms which the law attaches to every Contract of a particular class. They help to determine
Rights and duties of contracting parties and effects and consequences of their contract. The
naturalia of many Contracts known to Zimbabwean Law are based largely from Roman law,
but are adapted by our courts, legislation and trade usage.
4.2 Incidentalia
Additional terms by parties themselves.
5) Conditions
A condition is a contractual term which renders the operation and consequences of the
Contract dependant on the occurrence of a specified future event. Event must be uncertain
whether it will indeed occur. Eg A makes an offer to buy B’s house if the sun rises tomorrow
= not a condition.

5.1 Types of conditions

5.1.1. Suspensive Condition

A contractual term which suspends operation of the contractual obligation in terms of the Ctr
until the condition has been fulfilled. Valid contract at conclusion but rights and duties
suspended until condition are fulfilled. Condition will be fulfilled when uncertain future
event takes place eg I will give you the share certificate when you make full payment for the
shares.

5.2. Resolutive Condition

Contractual term which renders the continued existence of the Contract dependent on the
occurrence (or non occurrence) of a specified uncertain future event. Contractual rights and
duties become operative and are enforceable immediately. If condition is fulfilled the
Contract is dissolved and contractual rights and duties cease to exist eg I will lend you my car
until you buy yours or I will supply water to you until the beginning of rain season.

56
6. Time Clause
Distinguished from condition
In the case of condition, Contract comes into operation or is dissolved upon the occurance of
a specified uncertain event. Whilst time clause determines a specific time when or the period
within which the contract will either become operative or be dissolved eg 1 January 1991, a
good example is the Promulgation of Acts. “The Act will become operative from the 01
March 2011”. Example 2: “6 months after conclusion of the contract, the insurer may waive
the terms of the contract”

6.1 Suspensive Time Clause

Duty to perform is postponed until a determined or ascertainable moment has arrived. The
consequences of suspensive time clause are that the contract comes into being when it is
concluded so that the parties are bound to the obligations but Rendering of their performances
in terms of the Contract is postponed until the moment has arrived or when the period has
lapsed. Contractual obligations come into operation & enforceable when the specified
moment has arrived or when the specified period has ended. A undertakes that 1 month after
X’s death, he will buy B a new vehicle.

6.2 Resolutive time clause

Contract is subject to resolutive time clause if parties agree that the obligations flowing from
the contract will have effect until the arrival of a certain moment or until the expiry of a
certain period of time Contract comes into being immediately, when the moment arrives then
the obligations are extinguished. A rents B’s house for a period of 2 yrs. After 2 yrs Contract
lapses

7. Supposition
A contractual term which renders the existence of a contract dependant on an event which has
already taken place or on a state of affairs which exists at the time of concluding the ctr.
Contract comes into being if supposition is fulfilled. Eg A wants to purchase B’s stand if it
has a sea view. A does not know whether this is the case and is not willing to give a
guarantee in this regard. They agree that B will purchase the stand provided the house has a
sea view. If the sea is indeed visible from the house, obligations are created from the
beginning.

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8. WARRANTY
It is a contractual term relating to the absence of defects in the warrantor’s product or service
or possibility that the warrantor is able to render the performance or to the quality or standard
of the warrantor’s product or service to the quantity of the performance etc. A sells his fridge
to B and guarantees to B that exterior paint of the refrigerator will retain its original colour
for 3 yrs, A undertakes additional obligation. If it discolours within that period, A will be in
Breach. Some warranties are imposed by operation of laws eg warranty against latent defects
or eviction in the contract of sale

9.Modus
This is a Contractual term which burdens a contracting party. The burden can be to perform
as against a 3rd party or to do something or to refrain from doing something. eg A donates a
house to B, subject to the modus that B must use part of it as a nursery school. Contract is
unconditional and B can enforce A’s perform immediately, even if B has not yet complied
with the modus. B can claim delivery of the house immediately but if he fails to execute the
charge, he is guilty of breach of contract and A can use the ordinary contractual remedies. Eg
Sam donates his farm to his Son Subject to modus that he donates R100 000 to his sister.
Modus always refers to the future.

10. Cancellation Clause

Entitles a party to cancel in breach of contract. This is called lex commessoria

11. Penalty Clause

Law and common law attaches certain consequences to breach of Contract by affording
certain remedies to the innocent party eg if you don’t pay by the 1st day of every month you
will be charged a penalty of $20 per day until you pay the full amount.

12. Forfeiture clause

Often found in lease agreement. Entitle landlord to cancel lease and eject tenants when tenant
in breach e.g. in payment of rent on the due date. In the absence of a specific provision non
payment of rent not a material term entitling landlord to cancellation.

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13.Foreclosure clause
Normally found in mortgage bonds and debentures. Entitle mortgagor to call up the balance
due in terms of the bond if the mortgagee [debtor] is in default. Normally entails disposal of
mortgaged property.

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CHAPTER 15
BREACH OF CONTRACT
Breach of Contract

Forms of breach

Default by Debtor
Default by Creditor
Positive Malperformance
Reputation
Prevention of Performance

Where a Ctr creates obligation for both parties, each will in turn be a debtor and a creditor
depending on which obligation is involved

1.(Mora debitoris) Default of the Debtor

Debtor commits breach if he does not perform timeously and the delay is due to his fault. He
is in mora. This is called mora debitoris
Requirements
3. Requirements have to be met

1. Performance must be delayed

Debtor Must be late with his performance. if he renders a defective performance it is not
mora Debitoris. the term of contract may either provide for a specific day or time for
performance or no time may be specified

Where specific date or time for performance has been stipulated and the debtor fails to
perform on or before the appointed time, he is automatically in mora. This is termed mora
exre. The specific date for performance must be a day of which it is both certain that it will
arrive. E.g. 31 March 1999 or immediately. Where no date is specified, creditor can
determine a date by demanding that the debtor perform before or on a certain date. When

60
fixing a date, creditor must put reasonable time. Debtor is in mora if he fails to perform on
the determined date. Termed mora ex persona

2. Delay must be due to the Debtor’s fault

There can be breach if a party culpably does not honour his obligation. There is, no breach
where the debtor cannot perform timeously owing to bad fortune or circumstances beyond his
control eg viz major. When he has warranted performance at a particular time, late
performance will constitute breach of contract even if the delay was not caused by his fault.

Consequences of mora debitoris

It has an effect on the liability of the debtor should performance become impossible while in
mora. If performance becomes impossible after Debtor has fallen in mora obligations are not
extinguished. The debtor will be liable to perform.

2. Default by Creditor (Mora Creditoris)

Where the creditor causes the debtor’s performance to be delayed. Occurs where an
obligation is a bilateral juristic Act or where creditor’s co-operation is required for the debtor
to be able to render performance. eg where A & B agree that A will put tiles In B’s house and
upon arrival of A at B’s house, B is not there.

Requirements
a) The performance must be dischargeable.
Performance owing to the creditor must be dischargeable. In terms of existing and valid
obligation and must be physically and legally capable of being discharged . If not yet due, no
mora creditoris.
b) Debtor must tender Performance
Debtor must tender proper performance as specified in the Ctr and must call upon the creditor
for his co-operation. Creditor must fail to give his Co-operation. The default must be due to
the creditor

Consequences of Creditor’s Default

Debtor’s duty of care is dismissed if creditor is in mora. He is responsible only for intentional
loss and loss occasioned by gross negligence. Should the performance become impossible
other than through intention or gross negligence while the creditor is in mora, Debtor is
61
released from his obligation creditor remains liable for the counter performance. Eg A and B
enter into a Ctr. Ito the ctr, A is to give B his car in exchange of 10 beasts. B takes the beasts
to A’s home and upon arrival he is told that A has left for SA. Later that afternoon the
lightning strikes the beasts and all of them die, B is still entitled to get the car. In case of
Reciprocal; agreements, the debtor remains entitled to the performance due to him. However
in respect of the obligation towards the creditor, debtor still remains debtor. Obligation
towards the creditor is not as a result of mora creditoris, automatically regarded having been
fulfilled. If Debtor is in mora, it is removed by subsequent default of the creditor. Two forms
of breach of Ctr cannot exist alongside each other in respect to the same obligation

4. Positive Malperformance
Occurs when the debtor commits an act which is contrary to the terms of the Contract.
2 situations to be distinguished:
a) Debtor tenders defective or improper performance.
eg The builder builds the house he has undertaken to build but not with the material he was
supposed to use.
b) Does something he may not do in terms of the agreement.
eg Instead of giving the buyer Daisy he gives him stichus.
Or He gives a cow instead of a donkey.

4. Repudiation
It is any behaviour by a party to a Contract indicating that he does not intend to honour his
obligations, eg if the other party denies existence of the Contract or Tries to withdraw from
the Contract or Gives notice that he can’t or will not perform . It’s possible to repudiate part
of the Contract. Innocent party has remedies for breach of Contract. It is very difficult to
establish whether certain behaviour constitutes repudiation. There must be an Intention to
repudiate – Test is an objective one. Repudiation can also take place without any fault Basic
question is whether the person alleged to have repudiated his obligation has behaved in such
a way as to lead a reasonable person to conclude that he does not intend to fulfil his part of
the Contract. Mere failure on the part of the debtor to perform will not constitute repudiation.

5. Prevention of Performance

By Debtor
62
Where he culpably renders his own performance impossible. Debtor not released from his
obligation e.g. Debtor has to develop and print a photograph film for the creditor but
negligently exposes it to light before development is completed. Performance is impossible.
Debtor can be held liable.

Prevention of Performance by the Creditor

Where creditor commits breach of contract (BOC) in form of prevention of performance
where he culpably renders the debtor’s performance impossible. E.g. Debtor has to service
the creditor’s motor car but before this can be done, the creditor negligently causes an
accident in which the motor car is destroyed. It must be distinguished from Default of
Creditor -mora creditoris.

In the case of Prevention of performance by creditor, the debtor’s performance is made

impossible and consequently can never be rendered. With mora creditoris, creditor merely
delays the debtor’s performance but does not render it impossible, so that it is still capable of
being rendered. The debtor will be deemed to have discharged his obligation. The debtor is
still entitled to creditor’s performance but the debtor must bring into account any expenses he
has saved by reason of his no longer being obliged to perform. The debtor No longer services
the car but is entitled to payment of the Contract amount less any savings, eg on oil that
would have been used.

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CHAPTER 16
REMEDIES FOR BOC
1. Execution of the Contract
2. Cancellation of Contract
3. Damages
The availability of remedies is determined by the nature and seriousness of BOC.
1.Execution of Contract
It can comprise of 3 possible orders
(a) An order for specific performance
(b) Order for reduced performance
(c) A prohibitory Interdict

a. Specific Performance
This is an Order which commands a contracting party to render performance that he has
undertaken to render. It is not made in sequestrated estates or granted in impossible
performance. Court will refuse if specific performance will affect the defendant unreasonably
harshly.

b. Orders For Reduced Performance

Court can order a Ctr Party to render a reduced performance. The exceptio non adimpleti
Contractus comes into play where the parties to a Ctr have to perform simultaneously. If the
plaintiff claims performance from Defendant in such a case, the Def can raise exception.
Which means that the plaintiff will not succeed with his claim if he himself has not yet
delivered or rendered his counter- performance. Exception gives Def the right to withhold his
own performance until he receives Counter- performance by the plaintiff. If plaintiff makes
defective/partial performance and then claims counter performance from Defendant, Where
performance is divisible, Def can exercise his right to withhold his own performance in
respect of that portion of plaintiff’s performance that is still outstanding. If indivisible, he can
make a defective performance, the situation is made complex. Injured party has the chance to
cancel if malperformance was substantial he may also reject delivered performance, enforce
the Ctr and claim proper performance.

64
Where he rejects the performance and claims proper performance he will be able to ward off
any claim to counter performance with exceptio, until plaintiff has performed properly or has
tendered such performance. It could happen that malperformance is not substantial enough to
justify rejection thereof or that the Defendant decides to retain defective performance.
Defendant has the benefit of the performance but he is still able to ward off a claim for his
counter performance with the exceptio due to the fact that the plaintiff himself has not
performed properly. The question whether plaintiff should be entitled to receive counter
performance for that portion of the indivisible performance that he himself has already made
and if so, how is the extent determined. Decision of Broiling Pvt ltd V Scope Precise
Engineering Pty Ltd 1979 (1) SA 39 (A) – PG 124.

2. CANCELLATION
It is an abnormal remedy for Breach of Contract. If there is a cancellation Clause,
cancellation is usually limited to certain degrees of Breach of contract. In absence of
cancellation Clause, innocent party will be entitled to cancel contract if the breach is material.

Cancellation because of mora debitoris.

In the absence of a lex Commissoria, party may cancel a Contract on the basis of mora
debitoris in 2 instances. Namely where
(a) Time is of essence
(b) He or she acquires a right to cancel the Contract.

(a).Time is of the essence

Cancellation on this ground is only possible where:
Debtor is in mora exre in other words, a date for performance was fixed in the Contract and
debtor is guilty of the delay.Time is of the essence in Contract. This means that it is crucial in
specific circumstances that performance has to be delivered on the agreed date. In essence
cancellation on this ground is based on tacit lex Commessoria which fluctuate in value, and
usually for goods bought for purposes of resale

(b). Creditor acquires Right to Cancel

Where time is not of essence, creditor may acquire a right of cancellation by delivering a
notice of re scission to the debtor. If Debtor is already in Mora exre, creditor must demand
65
performance within a reasonable time and notify the debtor. A reasonable time has to be
determined regarding the facts and circumstances of each case. If X builds a house for Y
which has to be completed on the 1st of November and the house is not completed on that
date y will have to send X a notice demanding that the house be completed within a
reasonable time 24 hrs will be unreasonable, at least a few weeks. Where Contract does not
specify a date for performance, the creditor must 1st place the debtor in mora ex-persona by
means of a letter of demand if he fails, he can cancel.

Cancellation Because of Mora Creditors

The grounds for cancellation are the same as in the case of mora debitoris discussed above.
(a) Time is of essence and
(b) Debtor acquired a right to cancel.

Cancellation because of Positive Malperformance

In the absence of lex commisoria, injured party only entitled to cancel the Contract where
mal-performance is substantial. It is substantial if injured party receives something which is
totally different from that which was contemplated at the time of conclusion of Contract and
he, therefore never would have concluded the Contract had he known what kind of
performance he was to receive. In other words injured party may cancel the contract where
mal-performance is of such a serious nature that he cannot reasonably be expected to keep the
performance and be satisfied with a claim for damages.

Cancellation because of Repudiation.

One party does not have to accept reputation but might uphold the Contract. When the
Injured party elects to accept repudiation, he acquires a right of cancellation which he
normally might not have had. If a party to a contract indicates that he is not going to fulfil his
contractual obligations at all, his repudiation is serious enough to entitle the injured party to
cancel Contract. where he indicates he is going to render partial or defective performance,
facts and circumstances of each case have to be examined in order to determine whether the
reputation is substantial enough to allow cancellation of contract. If it is not, injured party
may not cancel the Contract and must be satisfied with a claim for damages. If performance
by repudiating party is divisible the Contract may be cancelled only in part.

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Cancellation where performance rendered impossible
Where any party to a contract renders performance impossible, specific performance and
enforcement of Contract are not possible. Where contract indivisible = cancel Contract and
Claim damages. Where it is Divisible, may resile from the Contract in respect of that part of
performance that was rendered impossible.

DAMAGES
Most common remedy for breach of contract. Whether or not the term breached - sufficiently
material to warrant cancellation of contract - injured party always entitled to such damages -
as can prove to have suffered as a result. Damages assessed at time of breach of contract.
Innocent party placed on same position as would have been if in contract properly performed
to the extent that this can achieve through monetary payment without undue hardship to
defaulting party,
In determining appropriate damages- following considerations decisive:
a] The loss must result from the breach itself- causal link.
b] Must be actual monetary loss incurred or gain not made.
c] Natural consequence of the breach - must have been in the contemplation of the
parties at the time of contracting. Loss must have been reasonably foreseeable by the
defaulter at the time of contracting.
d] The injured party must do all within his power to keep his damages as low as possible
[mitigate his damages]. Cannot allow damages to increase whilst doing nothing about
it.
There are different types of damages
i] Compensatory Damages
These are awarded as a measure of the actual loss suffered. e.g. if A agrees to sell 10 tonnes
of maize to B at $60 000 per tonne and A defaults, forcing B to purchase from another source
who charges him $70 000 per tonne. The compensatory damages would be the $10 000
difference between the agreed price in buying the maize from A and the price from the
alternative supplier.
ii] Consequential Damages
For these damages to be recoverable they should have been reasonably foreseeable at the time
the contract was entered into. In Hadley v Baxendale [1845] the engine shaft of plaintiff's [P]
corn mill had broken and P hired defendant [D] to transport the shaft to the manufacturer who
was to make a new one using the broken shaft as a model. D failed to deliver the shaft within
67
the time promised. With the engine out of service the mill was shut down. P sued D for lost
profits during the period the mill was shut down. Held - the lost profits could not be
recovered as damages because in many cases millers sending broken shafts do not shut down
their mills, using spare shafts. Therefore damages of this kind were not reasonably
foreseeable since D was not aware of the special circumstances.

iii] Liquidated Damages

These are damages that the parties agree upon before the breach and form part of the terms of
the contract, governed by the Conventional Penalties Act. When damages are in issue the
plaintiff must prove his loss. The courts will not speculate when awarding damages.

68
 NATIONAL UNIVERSITY OF SCIENCE AND TECHNOLOGY
DEPARTMENT OF RISK MANAGEMENT AND INSURANCE
COMMERCIAL LAW
CIN 1204
LECTURER – MR. L.NCUBE
YEAR 2014 COURSE OUTLINE

TOPIC CONTENTS OBJECTIVES

Contract of  Introduction  To build an appreciation
purchase and sale  Definition of what constitutes a sale
 Requirements of a valid contract in the legal senses

 Essentials  To examine the

1. Thing sold. obligations of parties to a

2. Purchase price contract of sale

3. Agreement of buy and sale  To analyse the rules

 Duties of the buyer governing the passing of

 Duties of the seller risk in a sale.

1. Safe keeping of the thing.  To analyse the rules

 Factors influencing duty of safe keeping governing ownership and

delivery in sale
 Passing of risk
transaction.
2. Warranty against eviction
 To present the legal
 Forms of eviction
position where defective
 What can the buyer do when eviction is imminent.
goods are sold
 Buyer’s right of recourse
 To examine the remedies
3. Implied warranty against latent defects
available to either party
Remedies for latent defect
where one defaults.
i) Actio Empti
 To give an outline of
AEDILITION ACTIONS
specialized sales
i) Actio Redhibitoria
ii) Action Quanti Minoris

SPECIAL SALES

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TOPIC CONTENTS OBJECTIVES
 Sales by description
 Sales on Board
 Free on Board
 CIF Sales
 Auction Sales
Contract of Lease DEFINITION OF LEASE ESSENTIALS  To define lease
1. Leased property agreement
2. Temporary conferment of power to use and  To examine the essentials
enjoyment of a lease contract
3. Nature and extent of counter performance.  To scrutinize the
DUTIES OF LESSOR essentials of a lease
1. Delivery of leased property contract.
2. Maintenance of leased property  To scrutinize the duties
3. Ensuring undisturbed use and enjoyment of the of the lessor and lease.
thing.  To analyse the remedies
4. Compensation for attachments and improvements. of the lessor and lessee.

REMEDIES OF THE LESSEE

DUTIES OF THE LESSEE
 Payment of rent
 Proper use of leased property
 Return of property on termination of lease

Agency Contract DEFINITION  To define the contract of

TYPES OF AGENT Agency
1. A factor  To examine types of
2. A Broker Agents
3. Del Credere Agent  To examine the score of
4. Auctioneer authority
5. Estate Agent  To scrutinize the duties
AUTHORITY OF AGENTS of the principal Agent.
1. Actual / Express Authority Apparent / ostensible

70
TOPIC CONTENTS OBJECTIVES
Authority.

NEGOTIORUM GESTURE RATIFICATION

1. To perform his mandate.
2. To exercise necessary and reasonable knowledge,
carrier and skill.
3. Duty of utmost good faith.
DUTIES OF THE PRINCIPAL
To reimburse expenses.
To indemnify the Agent
 Termination of agency.
Contract of DEFINITIONS ESSENTIALS OF  To define employment
Employment EMPLOYMENT CONTRACT. contract
 Voluntary agreement  To distinguish between
 Services rendered in respect of a subordinate an employee and an
relationship. independent contractor.
 Remuneration of employee  To examine the duties of
 Distinguishing between employment the employer and
contractual other related contracts. employee.
 Duties of employer  To examine various
 Duties of the employee liability of the employer.

 Vicarious liability of the employer.

INSURANCE HISTORY OF INSURANCE  To give a historical
CONTRACT background of
Nature and basis of insurance
insurance law
Different types of insurance  To analyse types of
insurance
 indemnity  To examine essentials
 Non indemnity of contract
 Liability  To evaluate important
 Re-insurance payment principles in
Essentials insurance contract

 Insurable interest

71
TOPIC CONTENTS OBJECTIVES
 Risk
 Premium
 Undertaking to pay a certain amount
Valued and unvalued policies

Insurer’s right to repair

Subrogation

Insuring with several insurers

Over and under-insurance

Excess clause

Duty to disclose

RECOMMENDED TEXTBOOKS
1.Commercial Law : Nagel & Others 3rd Edition.
2.Principles of commercial law . Harenga and Havenga. Gordon G. and Getzw. The South
African law of Insurance Juta and Company
3.Labour Law in Zimbabwe, Gwisai, 2006

72
THE CONTRACT OF SALE

INTRODUCTION
Buying and selling is a fundamental transaction in the modern commercial
world. Goods and services are exchanged largely through the sale agreement
and it is only logical that the law provides for specific rules and regulations
applicable to this transaction. A sale is basically a contract and as such all
the rules governing formation of contracts in general apply equally to sale
agreements. However, in certain instances there are additional legal
principles which govern sales specifically which are not found in other
contracts.

DEFINITION
Specific, nominate, reciprocal agreement to buy and sell, in terms of which
the seller has the true intention to deliver a determined or determinable
thing together with all his rights in the thing undisturbed , to the buyer and
the buyer has the true intention of paying a determined or determinable
price for the thing.

Requirements for a valid Contract of Sale

Ordinary 5 requirements are also applicable to Ctr of sale. It is concluded
with the intention of passing ownership though seller does not have to be
the owner of the thing. Seller only obliged to transfer all his rights in the
thing to the buyer without interference or disturbance. If one of these rights
is ownership, seller to transfer ownership. transfer of ownership is one of
the characteristics of Ctr of sale. Any clause stating that buyer will never
receive ownership of the thing sold will have an effect that Crt will not be a
Ctr of sale. Mere conclusion of the Ctr of sale does not result in the transfer
of ownership. Buyer obtains a personal right against seller. Other
requirements have to be met eg delivery

73
Essentialia of Crt of Sale
1.Thing Sold
seller and buyer must reach consensus on thing sold. thing must be
determined /determinable at the Conclusion of Contract. if the description
is too vague to determine what is sold, Ctr null and Void. can be movable or
immovable, material or immaterial. must be merchantable ie, be able to be
sold commercially
What can be sold?
Different things sold
a) Future Things
These things are only determinable @ conclusion of the Ctr ito certain
specifications or occurance of a certain event. If these specifications are met
or if the event occurs = Thing becomes determined eg Emptio rei speratae -
where S sells next season’s crop to B for R20 per bag. The object sold only
determinable and will be determined when the crop has been fixed in units.
Emptio Spei – where S sells the next season’s crop to B for a lump sum of
R10 000 irrespective of whether the crop materialises or not. This is a Ctr of
Chance, object sold is fixed as soon as the ctr is concluded

b.Generic Sale- where the thing sold is indicated in general and only
individualised later.
eg 20 bags of cement from all bags available in the seller’s store. Object sold
is determinable and will be fixed only after individualisation.

c) Res aliena
This is the thing of which the seller is not the owner. It does not affect
conclusion of a valid Ctr of sale. The seller does not have to be the owner of
the thing sold. Owner only has to deliver the undisturbed use and
enjoyment of all his rights in the thing to the buyer. If seller knows that he
is not the owner of the thing sold and proceeds with sale, Buyer who acts in
good faith will be able to hold seller liable for fraud or misrepresentation and

74
criminal sanctions. Where seller sales a res aliena, owner can claim with Rei
Vindicatio. This right stems from NEMO PLUS IURIS RULE-which provides
that a person can only transfer the rights which he has to another person.
Where buyer posses a Res aliena in good faith the owner can claim his
property from buyer only if the Prop still exists. If buyer sold property to
someone else, one can’t claim the value of the property from the former
buyer. On the other hand, one will be able to claim the value where the
buyer through his negligent or intentional conduct made it is impossible for
the owner to reclaim Prop. Where buyer buys a res aliena and acts in bad
faith the true owner can claim the value

Rei Vindication can Not be exercised where

(i) Real owner represented to the buyer that seller is the owner, Doctrine of
estoppel will prohibit the owner from invoking the real state of affairs
(ii) Object was sold in terms of an order of court and buyer acted in good
faith
(iii) An object which without knowledge on the part of curator does not
belong to insolvent estate is sold by a curator who acts in good faith.
(v) Buyer has by law a lien or tacit hypothec over the object sold.
(v) Real owner has instructed another person to sell the object on his
behalf and after selling he uses purchase price for his own account.

2. Purchase Price
Seller and Buyer must reach consensus on purchase price
Requirements
(a) Agreement on the Price
(b) The price must be certain and
C) The price must consist of acceptable currency

2.1 General
Thing sold must be determined or determinable. law will not recognise an
agreement on the price where there is a serious disproportion between the
price and the value of the thing sold. The price can be less than the value of

75
the thing but where it is completely out of proportion no Ctr of sale exist.
Valid methods of price fixing: $125 or price is determined per unit = R120 /
bag
Ineffective methods
-party to fix price unilaterally,
-Unnamed 3rd party to determine Price
- Described as reasonable and fair

Duties of the Buyer

A sale involves two parties, the buyer and the seller. The obligation of the
buyer can be summarised as follows:
i] To pay the purchase price;
ii] To pay the seller's necessary and reasonable expenses to maintaining the
merx pending delivery;
iii] To accept delivery of the merx.

Obligations of seller include:

i] To take care of the merx [subject matter of the sale] pending delivery.
ii] To deliver the merx to the buyer.
iii] To pass good title to the buyer/warranty against eviction.
iv] Duty to supply goods of the right quality/warrant against latent
defects.

DUTIES OF THE SELLER

1. SAFE KEEPING OF THE THING SOLD
Duty of seller is to take care of & protect the thing sold from the time of
conclusion of the Ctr until thing is delivered to the buyer. Buyer can claim
damages for Negligent Conduct of Seller. Not liable – if not Due to his fault –
viz major

Factors that influence Duty of safe keeping

1. Mora Creditoris & Mora Debitoris

76
Where buyer is in mora Debitoris or Creditoris (where he fails to pay the
price or fails to receive the thing sold. seller will only be held liable for
damages caused by His Intentional/ grossly negligent conduct. Seller in
Mora Debitoris (where he fails to deliver thing sold ) = Responsible for any
damage even in the absence of fault on his part.

Passing of Risk
Doctrine determines whether seller or buyer bears the risk where accidental
damage is caused by COINCIDENCE or ACTS OF GOD and not by culpable
conduct of either Party. General Rule – owner suffers loss when his property
is destroyed. Doctrine of passing of risk causes Risk to pass to B when sale
is perfecta.
A Contract is perfecta when
(a) Buyer & Seller have intention of buying and selling
(b) Purchase price is determined
(c) Ctr is not subject to a suspensive condition.
Result is that Buyer bears the Risk where the thing is damaged / destroyed
through coincidence or Act of God. Buyer still has to pay the purchase price
even where the seller has not delivered the thing to him.
NB- the principles as applied to passing of risk also apply to the allocation of
benefits. Eg where a cow has a calf after date of sale but before delivery the
calf belongs to Buyer.

Duty of safe keeping and passing of risk

DAMAGE TO THING AFTER CONCLUSION OF CTR but Before

DELIVERY

77
FAULT NO FAULT
(INTENT / NEG) (COINCIDENCE / ACTS OF
GOD)

Duty of Safe Keeping Passing of Risk

Seller bears Damages Buyer bears Risk if Ctr is

Perfecta

The above general rule on the passing of risk has several exceptions. The
risk will not pass to the buyer in the aforesaid manner in the following
situations:
a] Where there has been an express or implied agreement varying the
general rule. Thus in Jacobs v Petersen & Another [1914] CPD 705 J sold
and delivered a horse and cart to P for a price of $8 which was to be paid in
instalments. The contract was subject to the condition that ownership of the
property was to pass only on payment of the full purchase price. P paid the
first instalment but the horse died soon thereafter. J sued for the balance of
the purchase price. Held the sale was subject to the suspensive condition
that ownership was only going to pass on payment of the full purchase
price, hence the risk of destruction of the goods remained with the seller
until the counting or weighing is done
b] Where the goods bought have to be measured, weighed or
counted in order to fix the price or appropriate them to the contract.
in Poppe, Schunhoff & Guttery v Mosenthal & Company in [1879] Buch
91 the plaintiff bought from the defendant 200 cases of brandy on 6

78
 July 1878. Of these, 110 cases were delivered on 18 July 1878; 60
cases were delivered on 6 August 1878 and the remaining 30 cases
were delivered on 15 August 1878. On 25 July an Act imposing excise
duty on brandy became law. This meant that the brandy that had not
been delivered by 25 July was liable to pay duty. The issue before the
court was who between the plaintiff and the defendant was liable for
duty on the 90 cases that had not been delivered as of 25 July. The
court found that nothing had been done to distinguish the buyer's
brandy from the rest of the stock in the seller's possession. Held the
risk remained with the seller who was therefore responsible for the
payment of the duty.(also case of Horn v Hutt)

c] Where there is default on the part of the seller in making delivery.

2.WARRANTY AGAINST EVICTION

Any action by a 3rd Party who has better rights in the thing sold that
deprives the buyer of the total or partial use, enjoyment and disposal of the
thing sold, constitutes eviction. It must be remembered that the Buyer does
not become owner of the thing by mere conclusion of a valid Ctr of sale. S is
not obliged to transfer.
Forms of Eviction
1. When True Owner of the thing sold claims his property from the buyer.
2. A 3rd Party obtains possession of the property and the buyer cannot
claim this prop from the 3rd Party due to a defective title.
3. Ito the Rule that lease goes before sale (Huur Gaat Voor Koop) – Buyer to
allow lessee to use and enjoy property until lease expires.
4. Holder of a limited real right (eg Right of way) may prevent the buyer from
having full use and enjoyment of the thing sold.

What can the buyer do when eviction is imminent

1. General Rule – buyer must not surrender the thing to someone
threatening him with eviction.

79
2. Buyer to notify seller of threatened eviction In order to put up a defence
against 3rd party.
3. Where seller cannot be found or intentionally avoids notification, buyer is
relieved from any further duty of Notification.
4. As soon as seller receives notification of the threatened eviction, he can
take cession of Buyer’s rights and intervene and assist the buyer and
furnish the necessary proof of title.
5. Be joined as a party to the lawsuit
6. Do nothing
7. If seller does not help, Buyer to put up a strong defence

BUYER’S RIGHT OF RECOURSE AGAINST THE SELLER

TOTAL EVICTION
The buyer can cancel the Ctr of sale. Claim repayment of total purchase
price and Claim of damages which can include the following, Fruits which
had to be delivered to the true Owner, legal costs of the law suit, costs for
improvement and any increase in value of the thing sold.

2. PARTIAL EVICTION
Where the eviction has left the buyer with so little a remainder of the thing
sold that it cannot be said that a reasonable man would have bought the
same, the buyer may cancel the Ctr, claim repayment of the purchase price
and repayment of damages provided that he offers to return the remains of
the thing sold to the seller. Where party’s eviction is not of such a
substantial nature and the remains of the thing sold can be effectively used,
the Buyer may retain the remains and claim a pro rata repayment of the
purchase price as well as damages from the seller.

Where Buyer has no OR Limited Right of Recourse

a. Seller is only liable in terms of warranty where the reason/ cause of
eviction already existed at the time of conclusion of Ctr or where it was
caused after conclusion of Ctr due to seller’s fault. Even where the seller has

80
excluded his liability for damages, Buyer may still cancel the sale and
reclaim the purchase price.
b. Seller will not be held liable where buyer knew that the seller was not the
owner of the thing at the time of conclusion of the Contract.
c. Where the seller was unsure at the time of conclusion of the Ctr whether
or not thing belonged to him and has made this known to the buyer, the
seller cannot be held liable.
d. Seller will not be held liable where buyer’s claim against seller has
prescribed.
e. Where the eviction was caused by Viz major, buyer has no right of
recourse

In the contract of sale, the seller undertakes to pass free and undisturbed
possession of the thing sold to the buyer i.e. vacuo possessio. If the buyer's
vaccuo possesio is unreasonable and unlawfully interfered with, he is
protected by the implied warranty against eviction. This term is implied by
the law in a contract of sale whereby the seller undertakes that the buyer
will not b e disturbed in his use and enjoyment of the thing bought.

The warranty does not give protection against the unlawful acts of other
people. Rather it protects the buyer lawful eviction because of defective title.
In Nunam v Meyer [1905] 22 SC 203 X sold three head of cattle to Y who
upon being informed by Z that the cattle had been stolen from him, handed
them over to Z. Y then claimed the purchase price from X. Evidence led
proved that the cattle had indeed been stolen from Z. Held Y was entitled to
succeed even though he had handed the cattle voluntarily over to Z without
any judicial process of eviction.

In similar circumstances to those in the Nunam case, the best course of

action to take would be for the buyer to inform the seller first that his
possession is being threatened before voluntarily surrendering the property.
Otherwise he runs the risk of losing his right of recourse against the seller
should it later turn out that the third party's title is not incontestable [i.e.

81
should it be proved that the third party's title inferior to that of the seller]. In
Nunam v Meyer if it had turned out that X's title was superior to that of Z,
then Y having surrendered the cattle without seeking protection from X first,
would have lost both the cattle and the purchase price.

The implied warranty against eviction will however not apply in the following
circumstances:
a] The warranty will not apply if the parties expressly agree that the seller
will
not be responsible in the event of the buyer's eviction. But even in such
cases,
it is critical that the seller act in good faith because if he is aware that a
third
party has a claim in the merx and he does not disclose this to the buyer,
the sale would be voidable at the buyer's instance for fraudulent
nondisclosure
Vlotman v Landsberg [1890] 7 SC 301.
b] Where the buyer is aware that a third party is the owner of the article, he
has no right of recourse against the seller in the event of eviction. By
proceeding to buy the property, the buyer voluntarily assumes the risk of
eviction by the owner.
c] Where the cause of deprivation of possession arises after the sale and the
seller is not at fault, the warranty will not apply because that is considered
to
be risk which passes to the buyer on conclusion of the contract. In Rood's
Trustees v Scott & De Villiers [1910] TS 46. The plaintiff sold a piece of land
to
the defendant. Before transfer but after the sale a new law was passed
under
which portion of the land was confiscated to the state. Held the loss fell on
the
buyer because risk had already passed to him.

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3.THE IMPLIED WARRANTY AGAINST LATENT DEFECTS
The seller has a duty to deliver the thing sold without any defects. For
patent defects [i.e. those easily identifiable] the rules relating to breach of
contract by defective performance apply. The buyer has an option to accept
or reject the article.
REMEDIES FOR LATENT DEFECTS
ACTIO EMPTI
GROUNDS FOR INSTITUTION
a] warrant against latent defects
seller may give the buyer an express or tacit contractual warranty. where
defects are present, the buyer may institute the actio empti.
b] warranty for presence of special qualities
a seller may give the buyer an express or tacit warranty that certain bad
characteristics are absent and that certain good characteristics are present.
these warranties are found where a thing is bought for a specific
purpose.Where the seller then sells the thing to the buyer, he is deemed to
have given the buyer a tacit warranty that the thing is suited for that
specific purpose. eg if a bull is bought for breeding purposes and the seller
is told this by the buyer, the buyer will be able to act against the seller in
terms of the actio empti where the bull is found to be sterile at the time of
the conclusion of the contract.

C] Seller conceals latent defect

the seller is obliged to disclose any latent defects that he knows about to the
buyer. Where the seller intentionally conceals these defects, a fraudulent
misrepresentation is made to the buyer. The buyer may claim cancellation of
the contract and /or damages with the actio empti, where the seller
intended to mislead the buyer in order to persuade him to conclude the
contract
The seller must have the intention of concealing the defect and to deceive
the buyer before the buyer can act with the actio empti. A voetstoots clause
in a contract will not protect the seller against liability where he knew of the

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defect at the time of the conclusion of the contract. this is also fraudulent
misrepresentation
D] dealer and manufacturer
where the seller acts as a dealer, he will be held liable for all the buyer’s
damages (including consequential damages) due to the latent defect
the following are required before a dealer (seller) will be held liable
1. the seller must act as a dealer and
2.he must have professed in public that he has expert knowledge of the
thing sold. Where the seller is a manufacturer, he will be liable for all
buyer’s damages (including consequential damages). The manufacturer will
be liable without any declaration whatsoever that he has expert knowledge
regarding the thing sold. negligence or ignorance of the defect is no defence
against liability.

In Young Provisions Stores [Pty] Ltd v Van Ryneveld 1963 CPD 87 it was held
that a dealer in foodstuffs is liable for damages suffered by a consumer of
his products and even if he had no means of finding out the defect. The case
concerned canned food. Similarly in Odendaal v Bethlehem Romery Bpk
1954 [3] SA 370) bought from B a dealer almost dealing exclusively in the
sale of stock feed, a quantity of fine bonemeal for purpose of cattle feed. The
bonemeal was, unknown to either O or B contaminated with anthrax germs.
As a result of eating the meal 13 of O's cattle died. O sued for the recovery of
the value of these cattle from B. Held O was entitled to full compensation.

What may be claimed with the actio empti

a) cancellation of the contract of sale only where the defect is of such a
nature that it cannot be expected of the buyer to retain the thing sold,
and /or
b) damages

AEDILITIAN ACTIONS
ACTIO REDHIBITORIA AND ACTIO QUANTI MINORIS

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The actions are available to the buyer where a latent defect is present in the
thing sold and no express or tacit contractual warranty was given by the
seller. Cannot claim damages with these actions
Actio redhibitoria and actio quanti minoris.
grounds for institution
the Aedilitian actions can be instituted where
a) the thing sold has a latent defect
b) the seller was aware of the latent defect and fraudulently concealed such
fact
c) The seller expressly or tacitly guaranteed the presence of good
characteristics or the absence of bad characteristics
What must be claimed with actio redhibitoria
PURPOSE- to place both parties in the position they were in before
conclusion of the contract. Restitution has to take place. Action can only be
instituted once. Only instituted where the defect in the thing sold is of such
a nature that restitution is justified. the test is whether the thing can be
used for the purpose it was bought for

What can be claimed with Actio Quanti Minoris

the buyer may claim a pro-rata reduction of the sale price. This can be
instituted more than once should more latent defects appear in future. The
exact reduction which the buyer may claim has to be calculated as follows:
the courts determine the difference between the price paid and the total
value of the thing with latent defect at the time of the action. The buyer
cannot claim any reduction in price where the thing, in spite of the defect, is
worth more than the price paid for it.

When aedilitian actions may not be instituted

a) defect arose after conclusion of contract
b) defect not latent
c) voetstoots sale
d) latent defect repaired

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e) waiver
the buyer may waive the actio empti or the Aedilitian action.
f) Prescription
the actio empti and Aedilitian actions prescribe if they’re not instituted
within 3 years after the claim arose. Prescription starts running after the
buyer has become aware of the latent defect

in SA Oil & Fat Industries Ltd. Park Rhynie Whaling Co Ltd. [1916] AD 400
the plaintiff bought a quantity of whale oil that was defective from the
defendant. Before becoming aware of the defect, the plaintiff mixed other oil
and fatty acids with the oil bought from the defendant. He could therefore
not return the oil bought.
When the plaintiff finally became aware of the defect, he sought through the
actio redhibitoria to cancel the contract. It was Held that since the plaintiff
could not tender restitution, his prayer for cancellation of the contract failed
and only the actio quanti minoris [reduction of the purchase price] was
available as relief. However the above rule will not apply in the following
situations:
a] Where the goods have perished after delivery as a result of the latent
defect making restitution impossible.
b] Where the goods have been consumed in the course of normal use to
which the seller knew they would be applied and the buyer had no
knowledge of the defect. In African Organic Fertilizers & Associated
Industries Ltd v Sieling [1949] [2] SA 131 S bought a quantity of Karoo
manure from A, informing him that it was to be used on land where
flowers, vegetables and seeds were being raised. The manure delivered
contained salt rendering it unfit for the purpose for which it was
bought. S being unaware of this defect used the bulk of the manure.
He tendered return of the remainder and claimed rescission. Held S
was entitled to succeed.

The seller is however not responsible for latent defects in the following
circumstances:

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a] Where the seller expressly contracts out of liability by agreement with the
buyer i.e. voetstoots sales But contracting out of liability will not help
the seller where he sells voetstoots knowing that the merx is latently
defective, Van Der Merwe v Culhane [1952] [3] SA 42. Effectively the
seller must not be silent about latent defects of which he is aware.
Where he does so, even a voetstoots clause will not avail him. Thus in
Hadley v Savory [1916] TPD 385. H bought a colt at a public auction
of bloodstock from S, the sale was voetstoots. To the knowledge of S
the cold had previously run into a wire and seriously injured his
shoulder to the extent that he went lame and was unfit for racing
purposes. Of these facts nothing was said at the sale. Held, the colt
was latently defective and despite the purposed voetstoots clause, the
buyer was entitled to cancel the contract.
b] If the defect does not exist at the time of sale. In such cases the
ordinary rules on passing of risk will apply and the loss lies with the
buyer. The onus is on the buyer to prove that the defect existed at the
time of the sale.
c] Where the buyer is aware of the defect at the time of sale or became
aware of it consequently and expressly or impliedly accepts the
position. In the case the buyer would be taken to have waived his
rights Theron Africa [1893] 10 SC 246.

d] Where the seller makes a dictum et promissum which is unfounded,

the buyer can invoke the aedilitian remedies against the seller. A
dictum et promissum is a statement made by the seller during the
negotiations preceding the contract which bears upon the quality or
value of the thing sold and which can reasonably be constructed as
intended to be acted upon by the buyer.
e] Where there is wilful nondisclosure of a latent defect, the seller acts
fraudulently. But mere nondisclosure of a defect known to the seller
does not necessarily amount to fraud without evidence to show that
the nondisclosure was calculated to induce the buyer not to refrain
from entering into the contract. Thus intention must be proved.

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SPECIAL SALES
1. Sales by Description. This is a sale of unascertained goods in which
the parties agree that the item sold will be of a particular type. The
sale contains an express warranty by the seller that the goods will
meet the description given.

2 Sale by Sample. This is a sale in which parties agree that the goods
will be of the same quality as the exhibited sample.

3. Free of Board [F O B]. This is a form of sale where it is the duty of the
seller to place the goods free on board on a ship named by the buyer.
In this type of contract risk passes to the buyer of shipment of the
goods. Once the goods are on board, the seller is deemed to have
delivered them to the buyer.

4. Cost, Insurance and Freight [C. I. F.] Sales. With this type of export
sale, the price is to include cost, insurance and freight. The seller
must ship the goods and within a reasonable time he must tender the
shipping document to the buyer i.e. the invoice, bill of landing and the
insurance policy.

5. Auction Sales. This is a sale by an agent [auctioneer] on behalf of the

seller. The item should be sold to the highest bona fide bidder. The
sale is subject to "conditions of sale" and the buyers are taken to have
assented to these whether or not they read them Hofmeyer & Son v
Luyt 1921 CPD 837. Sales by auction can be with or without reserve.
An auction with reserve is one in which ordinary rules of offer and
acceptance applies. Bidders offer to buy at the reserved price or more
and the auctioneer on behalf of the sell may accept an offer or reject
the bid at his option. An auction without reserve is one where the
seller must allow the thing to be taken by the highest bona fide
bidder.

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CONTRACT OF LEASE

Definition of lease

A lease is a reciprocal agreement in terms of which one party, the lessor

make available the temporary use and enjoyment of a particular thing in
exchange for a counter performance

Essentials
1. Leased property
2. That the use and enjoyment be conferred only temporarily
3. The nature and extent of a counter performance delivered

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3. Leased property
Consensus must be reached on the leased property. immovable, movable,
corporeal and incorporeal property can be leased. The thing must be
identified or identifiable eg a VW GOLF Reg no:ABU 4584 or plot 111
Kensington, Bulawayo.

4. Temporary conferment of power to use and enjoyment

parties must agree on the use and enjoyment temporarily. The lessee
cannot destroy or alienate the property. The property leased cannot be let
in perpetuity. It has to be for a certain period eg 1 may -31 December or
upon death of a particular person.

5. Nature and extent of counter performance.

most general method is to stipulate a specific amount eg $100/month.
Rent can be fixed according to a formula convertible into cash eg
remuneration as that paid by previous tenant. it is also a legal method of
fixing the rentals if one says a named 3rd person will determine the rent
eg auditing firm(kpmg) will determine the rent. if parties stipulate that
the rent will be between $100-$200-it will not be allowed. The lessor
cannot increase rent unilaterally. The mere fact that lessee continues to
use prop after increase does not mean he has agreed to increase the rent.
Consent is inferred if the lessee does not respond after a reasonable
notice.

Duties of lessor
1 delivery of the leased property
2.maintenance of the leased property
3.ensuring undisturbed use and enjoyment of the thing
4. compensation for attachments and improvements

1.Delivery of the leased property

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The lessor is to make use and enjoyment available to the lessee eg through
symbolic delivery or actual delivery and when it is for a long time the
property has to be registered. The leased property must be delivered in the
agreed state eg a fully furnished flat. If no agreement has been reached, it
must be delivered in the condition agreed upon or must be suitable for that
purpose it is leased for.

2.Maintenance of the property

Lessor is to maintain property for the duration of lease. The property must
be maintained in such a way that it is suitable for the purpose it is hired for.
The lessor is not responsible for damages caused by lessee or persons whose
conduct the lessee is responsible.
minor repairs not attributed to age, quality of property eg replacement of
window panes or door handles have to be effected by the lessee.

Remedies of the lessee

should lessor fail to repair the leased property, he will be in breach of
contract therefore specific performance, damages, reduction of rent,
cancellation are remedies available.

a].Specific performance

To force the other party to perform.

b] Cancellation

If the leased property is so defective that it cannot be used for the hired
purpose, one can cancel the contract but defect must be of such a nature
that a reasonable man would not have continued with lease. Cancellation
also available if property is delivered late eg where time is of essence and
also if there’s a lex commessoria

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C] Damages

If the breach was caused by lessor’s actions and was foreseeable at the time
of conclusion of contract, lessee may ask to be placed in the position he
would have been had the breach not occurred. the extent of the damages
should be restricted by the reasonable foresee ability rule of the general law
of contract.

D] Reduction of rent

If breach not sufficiently serious to justify rescission, lessee may insist on a

reduction of the rent in proportion to the diminished use and enjoyment of
the property. If the breach is minor there is no reduction. In Roman law,
lessee is not entitled to pay if the prop is not maintained properly. The
position in South Africa-the test is whether such occupation was beneficial
or not. Zimbabwe approach: lessee is obliged to pay rent but has a claim for
damages. In addition, lessee can raise exceptio non adimpleti contractus if
called upon by the lessee to pay rent.

3.Lessee undertakes repairs

The lessee can repair the property himself and deduct the costs from the
rent.

3.providing undisturbed use and enjoyment of the thing

Lessor is to guarantee that lessee will have undisturbed use and enjoyment
of the property.
If he does not comply and he is not the owner of the property, lessee can
claim damages. The obligation entails that the lessor:

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a) may himself not disturb the lessee’s use and enjoyment
b) has to guarantee that no third party with a better right will disturb the
lessee in the use and enjoyment of property.

Disturbances by lessor

Frequent hunting expeditions on the premises without lessee’s consent,

gathering produce of property, changing locks of the leased property is
prohibited.

Remedies

a) Prohibitory interdict
b) spoliation order

6. HUUR GAAT VOOR KOOP

Hire takes precedence over sale. Buyer is bound by lease contract
provided that lessee pays rent to the new owner. New owner cannot
transfer any rights to another which have been transferred to the lessee.
The lessee acquires right to property. Purchaser does not incur any
obligations in terms of the contract of lease. Also not entitled to any rent
prior to the date of sale. This rule does not apply where property has
been expropriated. If it is a long lease of immovable property and it is not
registered in the deeds office then the principle wont apply. In respect of
other leases of immovable property, the maxim will apply if the purchaser
knew of the lease.

5. Compensation for attachments and improvements

where there’s an agreement, lessee is to be compensated by the lessor.
Problem arises where there is no agreement. In general, no compensation is
made for improvements without the permission of the lessor. If the lessor
refuses to compensate for improvements, then the other party can remove
improvements.

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Duties of the lessee
a) payment of rent
b) proper use of leased property
c) return of the property on termination of lease

1.Payment of rent(invecta et illata)

Payment is usually agreed contractually. If not it is paid at the end off lease.
As soon as the lessee of immovable property falls into arrears with his rent,
the lessor acquires a hypothec over movable property brought into the
property. It is only effective as long as the rent is in arrears and the goods
are in the leased property. Lessor loses his hypothec if goods are removed
from the premises unless he is able to pursue and arrest goods before they
reach their final destination. Should the landlord fear that the goods will be
removed, he can apply for an interdict. This includes property of 3 rd parties
brought into the property with lessee’s consent to remain there
permanently. Such movables will be subject to tacit hypothec. Third party
has to notify the lessor that the movables do not belong to the lessee

2. Proper use of the leased property

Lessee cannot use the leased object unreasonably or improperly. The leased
property must be maintained in a good condition and may only be used for
the purposes for which it has been leased for.

3.Return leased property after lease

Upon termination of the lease object or evacuating the premises, the leased
property must be returned to the lessor. If it is damaged, the lessee must
make good the damage unless he can show that the damage was not due to

94
any fault either on his own part or on the part of anybody for whose actions
he bears responsibility.

THE CONTRACT OF INSURANCE

HISTORY AND SOURCES OF THE LAW OF INSURANCE

The contract of insurance is probably one of the most frequently concluded

in the modern business world. Its organs can be found in trade wages
which existed in the medieval Italian city states to provide risks that were
attached to sea transport. Initially marine insurance was the only type of
insurance concluded, but with time the forms of insurance were developed.
Today the concept of insurance is so developed to such an extent that there
is hardly a risk one cannot be insured against. The South African law of
insurance is governed by Roman Dutch common law. In cases where
Roman-Dutch law does not provide an answer to a certain problem, the
courts can do a comparative legal research and apply English law of
Insurance, as a comparative law. Reference can also be made to the
Zimbabwean Insurance Act Chapter.

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The Nature and Basics of the contract of Insurance
An insurance contract is a reciprocal contract between an insurer and an
insured in terms of which the insured undertakes to pay the insured an
amount of money or its equivalent, in exchange of payment of a monetary
premium, should the risk borne by the insurer on behalf of the insured,
materialize by the happening of an event in which the insured has an
interest.

An insurance contract serves to protect the formation, preservation and

development of the insured’s estate against risks. In practice one effects
insurance by contributing to a fund to which other persons who are exposed
to the same risks, contribute as well. The risks that endanger the
formation, preservation and development of the insured’s estate are those
distributed amongst a group of people who are equally at risk.

DIFFERENT TYPES OF INSURANCE

1. Indemnity and non-indemnity Insurance

In indemnity insurance, the insurer undertakes to make good the
damage which the insured may suffer through the occurrence of an
event insured against. The amount of damages claimed is directly
proportional to the loss suffered or the amount of the insurance where
it is less than the loss suffered. The amount of insurance which the
insured cannot receive, cannot exceed the amount of actual damages
incurred. Where an insured insurers his car (worth USD15 000) for
USD 15 000, and damage caused to the car in an accident amounts to
USD10 000 the insured will never be able to claim more than the
actual damages being USD10 000. If the same car was insured for
only $8 000, the insured’s claim would be for USD8 0000 or even less.
Examples of indemnity insurance are property insurance e.g. marine,
fire, theft and motor vehicle insurance.

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 In the case of non-indemnity insurance, the loss suffered and the
amount paid by the insurer are not proportionate. The insurer
undertakes to pay the insured or the beneficiary a fixed sum or
amount of money if the event insured against take’s place. Non-
indemnity insurance includes life and personal accident insurance e.g
insurer A agrees with B that he will pay $20 000 to B’s wife when B
dies. B dies and his wife can claim the $20 000 from A. When the
risk occurs the insurer is liable to pay only a specific contractually
agreed amount to be ensured.

3 practical differences exist between indemnity and non-indemnity

insurance;

1. In the case of indemnity insurance the insurable interest (that

which is insured) has to exist at the time of loss or damage, but in
the case of non-indemnity insurance it must already exist at the
time of the conclusion of the insurance contract.

2. The rules of contribution and subrogation only apply to indemnify

insurance and not to non-indemnity insurance.

3. The Insurer’s liability in the case of indemnity insurance is limited

to the amount of damages actually incurred, while this is not the
case with non-indemnity insurance.

2 Short term, long term and third party insurance

Short term defines short term policies e.g. liability policy,
miscellaneous policy and defines life policy, fund policy, sinking fund
etc. 3rd party, is for claims against road accidents for personal
injuries caused by driving of motor vehicles.

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3. Liability Insurance
Liability Insurance
It insurers one’s liabilities incurred due to contract delicit or other
obligations. It is of the same nature as indemnity insurance. The
best known forms of liability insurance are professional liability
insurance, obtained by attorneys, auctions, engineers etc. e.g. the
Zimbabwean Law Society Compensation Fund.

4. Pre – Insurance
Where an insurer takes out insurance with another insurer to make
good the claims which the former had to pay out to the insureds.

5. Mutual Insurance
It exits through an association of members with a common interest.
The association also offers insurance to its members but without the
acquisition of gain.

6. Pool Insurance.

7. Captive insurance etc

REQUIREMENTS FOR VALIDITY OF AN INSURANCE CONTRACT

The General requirements for the conclusion of any contract namely
consensus, contractual capacity, regality, physical possibility and
formalities, also have to be met for the conclusion of insurance contracts.
However for a valid nominate insurance contract, consensus through a
process of offer and acceptance must be reached on the required
essentialia.

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Essentialia of the Insurance Contract
The essentialia of a contract are those characteristics of a particular
contract which distinguish it from other types of contracts. The following
attach to the insurance Contract.

1. Insurable Interest
The insured must have an interest in the non-occurrence of the
uncertain interest. The insured must have a proprietary interest
which he evidences to insure against certain risks. This means that
the interest must be of economical value to him. The continued
existence of the interest must offer an economical value or benefit or
rather the loss or damage of the interest must cause an economic
loss.

In indemnity insurance the insured must at least have a financial

interest in the non-occurrence of the risk. There is also the point of
view that the financial interest must have some legal authority or
foundation e.g. the interest must depend on a right in the object at
risk such as a proprietary right or a personal right. When an insured
has the required financial interest he will suffer damage on occurrence
of the event and will therefore be entitled to compel the insurer to
honour his obligation to pay a sum of money. The time at which the
interest must exist is also clear if the above is kept in mind; the
interest must exist at the moment the loss or damage occurs. It is
therefore not necessary for the interest to exist at the moment when
the contract is concluded.

With non-indemnity insurance a distinction must be drawn between

insurance on the life of a spouse on the one hand and the life of any
other person on the other hand. In the first case an unlimited interest

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 is presumed. Where time life of another is insured the law requires an
insurable interest in the sense of financial or pecuniary interest. A
creditor therefore has an insurable interest in the life of his debtor.
The time at which the existence of an insurable interest is required in
the case of non-indemnity insurance is the movement the contract is
concluded. Even though the interest might not exist at the moment
the risk occurs the insured or the beneficiary is entitled to claim the
amount payable in terms of the contract.

2. The Risk
The uncertain event insured against is known as the risk. Description
of the risk in the contract is important, because the insurer must
know precisely the nature of the risk and the insured the extent of his
cover. The parties always agree to insure against the occurrence of a
specific (or determinable) event. The insurer’s obligations are always
coupled with some event which must cause the result mentioned in
the contract e.g. a fire which damages the insured’s house. The
description of the risk must include:

a) The object insured, e.g. a car or a person’s life.

b) The hazard insured against e.g. theft.

c) Circumstances affecting the risk e.g. limitation of the insurance to

theft of a motor car while it is parked in a specific place.

Only the specific (contracts) risks passed onto the insurer are therefore
specified in the contract. The parties must also agree that the risk passes
from the insured to the insurer.
Risk must materialize from or due to an uncertain future event. Where
the risk is certain, the contract could be a wager or a gamble rather than

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 an insurance contract. The uncertainty in life insurance lies in the time
of death, although death itself is certain.

The difference between insurance contracts and wagering contracts

As far as the event insured against is concerned, there is uncertainty on
when and in the case of indemnity insurance, also whether the event will
occur. The element of uncertainty which is associated with risk is the
one aspect which a contract of insurance has in common with a wagering
contract or agreement. Both are contracts of chance, depending on an
uncertain event or contingency and both contain an element of risk. The
differences between wagering and insurance contracts are that;

a) A wagering contract is unenforceable in court.

b) In wagering contracts, the parties choose an arbitrary event, on the

occurrence of which one party wins and the other loses. The parties
thus create their interest in the event themselves whereas the parties
in an insurance contract have an insurable interest in the non-
occurrence of the event.

c) An insurance contract does not itself create the risk of loss.

d) The intention with which the parties conclude an insurance contract

can be of the greatest importance in distinguishing it from a wagering
contract. The purpose of an insurance contract is to protect the
estate while that of a wager is to increase the estate.

3. Premium
The insured undertakes to pay a premium. This is usually a sum of
money, but may also consist of something else. Although the actual
payment of the premium is not a requirement for time creation of the
contract, an undertaking to pay is sufficient. Payment is usually a

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 condition for the policy to take effect. The premium is usually
actuarially calculated by taking into account the scope of the risk, the
term for which insurance cover is provided as well as the extent of the
insurer’s possible liability in terms of the contract should the risk
materialize. Premiums are normally paid in advance, although in
practice parties sometimes agree for payment in arrears. The risk
would normally pass to the insurer as soon as the insured pays his
first premium to the insurer.

4. An undertaking by the insurer to pay a sum of money

In the case of non-indemnity insurance, the sum payable will be a
predetermined amount. Where for example, a person insures his life
for $10 000, (the insured amount) the insurer will have to pay that
amount to the estate of the insured or the beneficiary.

In the case of indemnity insurance the insurer’s obligation is to pay a

determinable sum of money. The exact amount of the payment is
determined after the occurrence of the event insured against, by
determining the extent of the damage. The value of the claim or the
measure of indemnity in respect of the loss of the risk-object is
determined, not by its cost, but by its value at the date and place of
the loss. The insurer must be placed in the same financial position he
was in- but not a better financial position before the occurrence of the
event insured against. The sentimental value of the object is thus
ignored and only the present value of the object is considered
irrespective of whether the object’s value had appreciated or
depreciated since the conclusion of the contract.

For example, if a house valued at $50 000 is insured against fire and
at the time of its subsequent destruction by fire it is worth $70 000,
then the insured’s loss which he may recover from the insurer is $70
000. Normally however a maximum value of compensation is
stipulated in the insurance contract. In such a case the insurer is

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 liable only for the amount of the insured’s loss or the maximum
insured value, whichever is the lesser.

Where the object has only been damaged the insurer will be liable for
the amount of partial loss suffered. The extent of partial loss suffered
is usually taken to be the cost of repairing the risk object. The
following principles which are applicable to indemnity insurance in
relation to the undertaking by the insurer to pay a sum of money
must be noted;

(a) Valued and unvalued policies

In order to eliminate difficulties regarding proof of the value of the risk
object, the parties may agree at the time of concluding the contract on
the value of the risk object. Such policies are known as valued policies
in contract to unvalued policies.

(b) The Insurer’s right to repair

An insurer often reserves the right in an insurance contract to have
the damaged risk-object repaired, instead of compensating the
insured. If the claim has been made under the contract, the insurer
must choose, within a reasonable time after the occurrence of the
event insured against, whether he wishes to repair the risk object
rather than to compensate the insured. Once he has elected to repair
he cannot change his mind later on. He must then have the risk
object completely repaired within a reasonable time.

(c) The insurer’s right of subrogation

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 Where the insured has a claim against a 3 rd party who has caused the
damage to the risk object, the insured may recover compensation only
once. He is not allowed to make a profit from the fact that he is
insured. Accordingly once the insurer has compensated the insured,
the insurer has the right of “subrogation” that it is to say the insurer
himself may enforce the insured’s claim against the third party in the
name of the insured.

(d) Insuring with several insurers

An insured has the right to insure the same risk object with as many
insurers as he wishes. In the event of a loss occurring, the insured
may however, only recover the full amount of his loss and no more.
Thus where he is over-insured by double insurance, he must choose
whether to recover his total loss from one insurer or a pro-rata portion
from each of the insurers concerned. Where an insurer pays more
than his pro-rata share of the amount claimed, he has on the
grounds, of the “principle of contribution” a right of recourse against
the other insurers of the same risk-object for a pro-rata contribution
toward the compensation paid to the insured.

(e) Over and under insurance

There is nothing to prevent an insured from insuring for a larger
amount than as necessary to secure full compensation in the event of
loss of the insured risk- object. In the case of indemnity insurance,
however, time insured may recover no more than the total value of his
loss. Where an insured insures for an amount less than the actual
value of the insured object he is under-insured. Contracts of
insurance often contain an “average clause” in terms of which the
insured is regarded as an insurer for the uninsured balance and
consequently must himself bear a proportion of his loss. For example
if his car is valued at $10 000, is insured for $6 000, and the car is

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 damaged then according to whether the amount of the damage is $10
000, $7 000 or $5 000, the insured will be able to recover only $6 000,
$4 200 or $3 000 respectively, in other words, as he insured for only
six tenths of the value, he can recover only 6/10 (six –tenths) of his
loss. This aspect is of particular importance with respect to insured
objects of fluctuating value.

(f) Excess Clauses

It may be agreed in an insurance contract that the insured may
recover only a specified proportion of his loss. In motor vehicle or
liability insurance, so called excess clauses are common. In terms of
these clauses, the insured must bear a specific proportion of the loss
himself e.g. the first $200 of the loss.

The Duty to disclose

Due to the prospective insured’s intimate knowledge of all facts
regarding the risk which he wants to transfer to the insurer, a legal
duty required him to disclose all relevant material information within
his actual or constructive knowledge, to the insurer. This enables the
insurer to decide whether he is prepared to accept the transfer of risk
from the insured and to reach consensus with the insured.

See mutual & Federal Insurance Co Ltd v Oudtshoom Municipality

1985(1) SA419 (A)

Anderson Shipping v Guardian National Insurance 1987 (3) SA 506

Qilingile v SA Mutual Life Assurance Society 1993(1) SA619(A).

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Who bears the duty to disclose?
The duty to disclose rests primarily on the prospective insured,
although Jourbet JA in the Mutual and Federal Case (432E) went
further and mentioned the possibility that an insurer might also be
subject to this duty. The insured must disclose all information which
could increase the risk. It could then reasonably be expected of the
insurer to disclose to the insurer all which could decrease or increase
or even exclude the risk.

The insurer can be expected to disclose all information to the insured

which is to the latter’s benefit and could be used to the latter’s
advantage.

When must the information be disclosed?

The information must be disclosed to the insurer (or the insured) to
enable him to decide whether he is prepared to conclude a contract of
insurance with the insured (and vice versa should the insurer’s duty
to disclose the accepted in future). This makes it a pre-contractual
duty. This duty is created by operation of law and not due to a legal
tie or legal obligation created between the parties.

It is possible to expand the duty contractually and to make it a

continuous duty which has to be complied with which the contract
remains in force. The parties have to specifically agree in the contract
that any material information which is discovered after conclusion of
the contract, has to be disclosed.

An example: A failure by X to disclose to an insurance company that

he is HIV positive, when taking life insurance may lead to breach of
contract once discovered upon tests being at the instruction of the
insurance company.

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However in the case of life insurance, the duty to disclose is a once-off
duty as these contracts are normally of a continuous nature, unless
the parties agree otherwise.

What must be disclosed?

The duty to disclose consists of both a positive and negative duty. The
positive duty requires time prospective insured to answer all questions
put to him by the insurer, honestly and in good faith. The negative
duty requires the insured to disclose all other material information of
which he has knowledge or should have had constructive knowledge,
even though it has not been pertinently asked of him. If the insured
gives false information, does not answer a question at all or refrains
from disclosing material information, he makes a misrepresentation,
which influences consensus and makes the contract voidable.

A number of case where decided with regards the duty of the insured
to disclose information, although no satisfactory solution was given to
the problem. The problem concerns the question as to which test has
to be applied in order to determine whether or not information is
material and has to be disclosed.

In Mutual & Federal Insurance Co Ltd case (supra) the court decided
that all information which would, to the reasonable man appear to be
material, had to be disclosed. The court rejected the idea that the
reasonable insured or the reasonable insurer should be used as a
criterion.

However in the Qilingile case (supra) the courts reformulated this test
and stated that those facts which, in the view of the reasonable man
are necessary for an insurer to enable him to determine whether or
not to accept the specific risk must be disclosed. The test of the

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reasonable man as applied in the Mutual & Federal case was therefore
expanded.

Of particular significance to note is the fact that Non-Disclosure

amounts to a misrepresentation by the prospective insured.(De Waal
v Metropolitan hewens Bpk 1994 (1) SA 818 (0).

Facts which need not to be disclosed

The insured does not have to disclose every single fact within his
knowledge. Due to their nature certain facts do not need to be
disclosed e.g

(a) Facts of which the insurer was or should have been aware. These
in particular include facts which are general knowledge or obvious.

(b) Facts in respect of which the insurer has waived his right of
disclosure.

(c) Facts which do reduce and do not increase the risk.

(d) Facts covered by a warranty in the insurance contract itself.

Consequences of non –compliance with duty to disclose

Non compliance with a pre-contractual duty to disclose amounts to
misrepresentation. The misrepresentation can be made by positive
actions (such as the disclosure of false information) or by commission
(where the insured does not reply to a question or withholds material
information. The misrepresentation can be intentional negligent or
innocent.

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Misrepresentation influences consensus, as a result of which the
contract is voidable at the option of the party prejudiced by the
misrepresentation. This will be effect irrespective of whether the
misrepresentation is made innocently or with a degree of fault. The
contract remains valid and enforceable until the prejudiced party
exercises has election and decides to void the contract. If the contract
is set aside, restitution has to take place. If the misrepresentation is
made intentionally or negligently, the prejudiced party can also
institute an additional action for damage in delict.

See De Waal No v Metropolitan hewens Bpk 1994 (1) SA 8/8 (0)

Where the misrepresentation made negligently or intentionally the
prejudiced party can also institute an additional claim for delictual
damages. It is however clear that he cannot claim contractual
damages where the contract is void ab initio.

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THE LAW OF AGENCY
Definition
Agency, is the relationship that exists between two persons when one
called the agent, is considered in law to represent the other, called the
principal in such a way as to be able to affect the principals legal
position in respect of strangers to the relationship by the making of
contracts on the disposition of property.

Or

Agency can be described as the legal situation where one person, that
is, the agent acting with authority arising from a contract of mandate,
an employment contract, estoppel, ratification or by operation of law,
performs a justice act on behalf of another, the principal causing the
principal directly to acquire all rights and duties flowing from such
legal act.

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An agent is someone who possess authority to perform any legal act,
unless it is prohibited by law, on behalf of a principal so that the latter
acquires all rights and duties flowing from such legal act. A principal
is a person who gives authority to an agent to perform certain legal
acts with the effect that the principal directly acquires the rights and
or duties that arise from the legal act. Authority can be described as
the power (consent) given by a principal to the representative in terms
of a contract of mandate or an employment contract or arising from
estopped ratification or by operation of law, in terms of which the
representative may perform certain legal acts on behalf of the
principal vis-à-vis a 3rd person, so that the rights and duties stemming
from the legal act, accrue to the principal and the 3 rd party.

NB 3 Golden rules of Agency must always be kept in mind;

1) Agency is based on a tripartite relationship, there will always be

more than 2 parties involved.

2) The agent must have the consent (authority / mandate) of his

principal to act on the latter’s behalf and must act strictly in
accordance with such authority / mandate.

3) Only the principal and the 3 rd party acquire rights and duties in
terms of the contract, even though the contract was concluded by
the agent and the third party.

It is important to note that the formation of an agency contract i.e

between principal and agent is governed by the general principles of
contract e.g. offer and acceptance, capacity, legality, formalities,
performance etc.

The general rule is that no formalities are required to enter into an

agency contract. The exceptions are agency contracts governed by

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statute e.g. for Conveyors who can only be appointed by a power of
attorney.

TYPES OF AGENTS

a) A factor
Was defined in Baring v Carine (1818) 2 B & A/D 137 @ 145 as a
person to whom goods are assigned for sale by a merchant residing
abroad or at a distance away from the place of sale. He normally
sells in his own name without disclosing that of his principal.

b) A Broker
This is an agent employed to make bargains and contracts between
persons in matters of trade, commerce and navigation. Properly
speaking a broker is a mere negotiation between other parties e.g
Stock brokers (who lead in the sale of shares) and insurance
brokers (who arrange insurance policies). The brokers function
usually includes finding a 3rd party who is prepared to conclude a
particular contract.

c) Del Credere Agent

Is an agent who guarantees the payment of the purchase price. He
gives this guarantee on returns for an extra commission.
d) Auctioneer
Is an agent whose business is to sell by public auction property
entrusted to him. An auctioneer may not personally or through an
intermediary make bids or purchases at the auction.

e) Estate Agent
Is an agent whose normal modus operandi is to endevour to find a
buyer to his clients’ immovable property. He may also find a lessee

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for a house, farm or business. He has the ordering duties of the
agent namely to act in good faith towards his principal and to give
account of all actions performed on behalf of the latter.

The Authority of agents

The most important thing is to assess the extent of the agents
authority. It is the extent of such authority which provides the
answers to the issues which normally arise in the law of agency,
particularly the issue of a principal disputing that he ever
authorized an agent to effect a particular contract. The issue of the
agents authority is resolved by examining the terms of the agency
contract.

Authority usually originates from or is granted due to the existence

of a contractual relationship between the parties. A person can
instruct another to conclude a contract on his behalf such usually
takes the form of a contract of mandate in terms of which the
mandatory must act as agent of the mandator.

TYPES OF AUTHORITY

1) Actual or Express Authority

Actual authority is the authority which the agent actually
possesses and arising from his mandate from the principal.
Authority can therefore be granted orally or in writing.

2) Before an agent can bind his principal to a contract with a 3 rd

person, the agent must have received the necessary authority to
perform that specific juristic act. Regard must be had to the
facts and circumstances of each individual case.

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 In Hely-Hutchinson v Brayhead Ltd (1968) 1 QB 549 @ 583 Lord
Denning clearly observed:

Actual authority may be expressed or implied. It is expressed

when it is given by words such as when a board of directors
pass a resolution which authorizes two of their number to sign
cheques. It is implied when it is inferred from the conduct of
the parties and the circumstances of the case, such as when the
board of directors appoints one of their number to be the
managing director. They thereby impliedly authorize him to do
all such things as fall within the usual scope of that office?

It often happens that an agent is given a general authority to

perform certain justice acts. If a principal appoints an agent to
a specific position e.g. as shop manager he tacitly authorizes
him to do anything that a person in that position must normally
be able to do in order to fulfill his assignment. In other words,
with implied authority it is clear that an agent has authority to
do an act incidental******to that clearly authorized. It has also
been held that an agent has implied authority to perform acts
which are usually performed by agents employed in that
particular capacity.

2. Apparent or Ostensible Authority

Apparent authority is really equivalent to the source
“appearance of authority.” If somebody through his actions or
words creates the impression that someone is his agent and a
3rd person contracts with the alleged agent on the strength of
“authority” or impression, the person who created the
impression cannot later allege that the agent did not have the
necessary authority. This is the doctrine of ostensible
authority.

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The doctrine way be applicable where the existing legal
relationship between principal and agent is terminated. For
example where an agent continues to take orders from clients
on behalf of his principal with the clients not having received
notice of the termination of the relationship, the principal will
be liable towards the 3rd party, because he will not be allowed to
show that the authority had expired.
Similarly, a principal can be bound by a conduct that falls
outside the real or express authority of the agent. Ostensible
authority exists where there has been a representation by the
principal whether expressly or impliedly of the agency which
representation is relied upon or on, by the 3 rd party to enter into
a transaction through the agent. Pleading ostensible authority
is merely to prevent (or estoppe) the principal from denying that
there was an agency relationship although in reality there was
none. Whenever one pleads the existence of ostensible
authority one must rely on the alleged principal’s conduct.

Estopped is an exceptional doctrine. If someone through his

words or conduct, intimates or creates the pretence that
someone else is acting as his agent, and a 3 rd person to his
prejudice, contracts with the alleged agent by virtue of the
pretence, the person who created the pretence cannot later
allege that the “agent” did not have the necessary authority. As
far as the position of the 3 rd person and the principal is
concerned the situation is treated as if the agent had the
necessary authority.

Negotiourum Gestor
The law may imply authority in one person to represent another
even in circumstances where there is no agreement. A classic

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example of this is the law’s grant of power to the guardian to
contract on behalf of a minor. By definition, the negotiorum
gestor has no authority whatsoever to represent the principal.
This means that he cannot create any legal relations between
the principal and 3rd parties. The law only gives a negotiorum
gestor the right to recover from the principal all the necessary
and useful expenses incurred provided his actions are
reasonable. The law requires that he spends no more than the
principal would have spent and as such as not entitled to
remuneration for his services.

The negotiorum gestor is a voluntary agent, he is still delictually

liable for any loss arising from his negligence. Under our law
for one to qualify a negotiorum gestor his actions need only to
be reasonable in all the circumstances.

Ratification
In the case of ratification, the relationship of principal and agent
is established retrospectively. The operation and legal effect of
ratification is comparatively simple the so-called principal
grants his approval to an act performed by an alleged agent
without his authority. Ratification is therefore an act of
approval whereby the defective act acquires full legal force.

Ratification is the express or tacit approval by a principal on

alleged principal of an act of agency performed without
authority or an act of agency that exceeds the limits of the
authority, performed on his behalf so that the juristic act is
deemed to have been performed with full legal force
retrospectively from the moment of execution thereof.

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 DUTIES OF THE AGENT

1. To perform his mandate

An agent is obliged to perform his assignment or mandate and in
so doing observe the principals instructions. The principal has the
right to sue the agent for breach of contract if the agent fails to
perform his mandate. The mandate must be performed at the time
specified in his authority, if not within a reasonable time.

2. To exercise necessary and reasonable knowledge, care and skill

Such must be the case and failure to act in this manner makes the
agent liable for any damage suffered by his principal. The degree of
care and skills differs with every case and as such the reasonable
man test will be used.

3. Duty of utmost good faith

An agent is thus required to disclose any personal interests he may

have in a venture to which the assignment relates. He must not
make any secret profits in the performance of these duties. He
must also disclose any conflict of interest which may arise in the
performance of his mandate.

See Fox and Carney v Dilaworth 1974) (1) RUR 124

Umtali Farmer’s Co-op Ltd v Sunnyside Coffee Estates 1971 (1) RUR
101

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N.B In all the above cases, the principal has the right to sue for breach of
contract or where appropriate to bring an action in delict.

Duties of the principal

1. To pay the agent his remuneration. The principal is obliged to pay

where the agent has substantially performed his mandate, or to
pay the agreed compensation to the agent. The later should prove
the existence of a contractual relationship, or agreement that he
will be remunerated or compensated for his services.
See Karol v Fiddel 1948 (1) SA 466

2. To reimburse expenses

The general rule is that the principal is obliged to reimburse the

agent for all expenses necessarily incurred by him in the
performance of his mandate. However, the agent is not entitled to
reimbursement where the expenses were due to negligence or
neglect of duty, or if reimbursement was excluded by agreement.

3. To indemnify the agent against loss

Again these must be incurred or suffered during or as a result of

his mandate. This was held in Blumenthal v Bond 1916 AD 37,
however these must not be as a result of improper use of authority
or fall outside the scope of the authority/ mandate given.

Agents liability towards third parties

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The general rule is that the principal is bound by the acts of his agent
provided the latter has acted within the scope of the authority. This
applies even where the agent has acted purely out of self interest.
Even where the agent acts in his own name and does not disclose the
existence of the principal, the principal will be bound as long as the
agent was acting within the scope of his authority. Thus it is clear
that where the agent properly acts on behalf of the principal, he drops
out of the transaction altogether and the principal becomes the party
thereto.

However where the agent acts without authority or exceeds his

authority he is taken to have warranted that he has authority and
impliedly undertakes that if the principal is not bound he shall place
the 3rd party in as good a position as if the principal were bound. The
agent is therefore liable in such circumstances, on his warranty of
authority. Where the agent acts on behalf of a non –existent principal,
he is liable on the contract.

Where an agent either intentionally or negligently misrepresents to the

3rd party that his principal exists while this is not the case and the
third party suffers damage as a result, the agent will personally be
liable in damages to the 3rd party by estoppel.

Liability of principal and / to Third parties

A principal will be liable in delict for the acts of his agent provided
that;

a. The agent is an employee of the principal and the delict was

committed while the former acted in the execution of his duties
and

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b. If the agent is not an employee the principal granted his authority
for the execution of the act in question or otherwise had or
should have had the knowledge thereof.

Furthermore a principal is liable for damages suffered by a 3 rd

party because of fraudulent misrepresentations made to him by
the agent. It is however a pre-requisite that the
misrepresentation must have been made by the agent while
acting within the scope of his authority.

Agent’s lien and set off

An agent has a lien over his participant’s property which is in

his possession, in order to secure payment of remuneration,
compensation, commission or expenses incurred by him in the
execution of his authority. The lien is lost if he relinquishes
possession of the property or otherwise waives his right.

Similarly an agent who is in possession of monies belonging to

his principal while his remuneration or compensation is owing,
may make use of set off. This means that he will have to pay
over to his principal only the monies remaining after deduction
of his compensation or remuneration if any.

Termination of agency

The contract of agency may be terminated in 3 main ways

namely;

1. By mutual agreement between the parties.

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 2. Revocation by the principal- the principal has the right and
power to revoke the agency without incurring liability in
damages unless the agent is expressly or impliedly entitled to
damages in such circumstances.

3. Renunciation by the agent – the agent may at any time but on

just grounds, renounce his authority. In the absence of such
just grounds the agent will be liable in damages to the principal.

Contract of employment
Definition of employment contract
It is a reciprocal agreement in terms of which the employee makes available
his services for a determined period and usually for remuneration under the
authority of the employer.

EMPLOYER

Is a person or body who exercises authority over an employee in terms of an

employment contract where the employee has made available his services to the
employer for a determined period and usually for remuneration

EMPLOYEE
Is a person who in terms of the employment contract makes available to the
employer his services usually for remuneration and for a determined period
under the authority of the employer

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ELEMENTS OF EMPLOYMENT CONTRACT

1.voluntary agreement between the parties

Forced labour and slavery are prohibited. A clear and unequivocal offer and
acceptance must exist

2.SERVICES ARE RENDERED IN RESPECT OF A SUBORDINATE

RELATIONSHIP

This means that there is control and supervision when the services are
rendered. The employer also provides guidance during the rendering of the
services

3. REMUNERATION OF EMPLOYEE

In the absence of agreement, remuneration is payable after services have

been rendered. Remuneration is usually agreed in the contract. If not agreed
then a reasonable remuneration is paid to the employee

EMPLOYMENT CONTRACT DISTINGUSHED FROM RELATED CONTRACTS

It is distinguished from mandate, agency, independent contracting and so

forth. It is important to distinguish the employment contract from other
legal contracts for purposes of
a)determining whether the labour relations Act applies or not
b)determining the vicarious liability of the employer
c) determining whether wage regulating measures are applicable to certain
employees or not.

CRITERIA FOR DISTINGUISHING BETWEEN EMPLOYMENT CONTRACT

AND OTHER RELATED CONTRACTS

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1. ORGANISATIONAL TEST
The test is whether the person concerned was part of the organisational
structure of business or company and whether his functions formed an
integral part of the business

2.SUPERVISION AND CONTROL TEST

It is the essence of a contract of a master and servant that the servant

should submit to the direction of his employer and obey his employer’s
instructions not only in the things he has to do but as to the time and
manner in which he has to do them.

3.DOMINANT IMPRESSION TEST, MULTIPLE TEST OR COMPOSITE TEST

This is the test favoured by the courts. Under this test, one looks at the
various factors that traditionally revealed a contract of employment viz those
showing a contract for the independent contractor, weigh up these multiple
factors to come with the dominant impression, namely the person is an
independent contractor or employee

SOUTHAMPTON ASSURANCE COMPANY V MUTUMA 1990 (1) ZLR 12

The employer had dismissed the employees without an approval of the

minister arguing that they were contractors. The court weighed up factors
which they believed were part of a contract of employment eg

1.were given list of customers

2.provided office space
3.were members of the company’s medical aid scheme
4.were not allowed to work for another insurance company
5.they worked under a hierarchy of managers

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on the other hand, factors that demonstrated they were independent
contractors
1. they were described as independent contractors
2.had flexible working hours
3.paid by commission

The court ruled that the dominant impression test showed that they were
independent contractors. The decision was criticised.

IN CHIWORESE V RIXI TAXI SERVICES

A taxi driver had flexible working hours, Was paid by commission, was
described as an independent contractor and the court ruled that he was an
employee.

DUTIES OF THE EMPLOYER

Duties of the employer are derived from:
Common law
Constitution
Labour relations Act
International labour treaties
Employment contract

1. CONSTITUTION

a. Refrain from forced labour or slavery sec 14

b. Refrain from inhuman and degrading treatment of employees sec 15. A
penalty like whipping would be unlawful
c. Adi alterum partem rule sec 18
d. Refrain from unlawful discrimination sec 19&23
e. Not to violate employee’s freedom of association, assembly, movement and
expression

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2 DUTIES UNDER THE ACT

a. duty to respect employees entitlement to membership of trade union

b. duty to refrain from forced labour
c. duty to refrain from unlawful discrimination
grounds of discrimination:
gender, tribe,HIV,race, marital status,disability

d. Duty to adhere to fundamental fair labour standards

e. Duty to adhere to prescribed maximum working conditions. Maximum of

8 hours a day and 40 hours a week
f. Duty to provide safe and healthy working conditions. Worker also has to
exercise due care. Workers in inherently dangerous environments are
assumed at common law as voluntarily assumed risk of reasonably foreseen
dangers. Employer not liable if he took reasonable steps

g. Duty to pay remuneration

h. Duty not to commit unfair labour practices
i. Duty not to commit sexual harassment
j. Duty to grant sick leave
Sic leave is 90 days per year on full pay.Additional 90 days on half salary
after providing a certificate from the doctor

K. Duty to provide vacation leave

30 days a year
L. Duty to provide special leave
12 days per year
m. Maternity leave and benefits
90 days

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VICARIOUS LIABILITY OF THE EMPLOYER
The general rule is that the employer is liable for any delictual conduct
committed by his employee during the course and scope of his employment

REQUIREMENTS FOR VICARIOUS LIABILITY

1. Existence of employment
contract
2. Commission of a wrongful act
3. Employment must have acted in the course and scope of his employment.

The test for whether the employee is acting within the scope of his or her
employment is not whether the employee is acting within the scope of his or
her employment at the time but whether his/her act or omissions
constituted negligent performance of the work entrusted to him or her

FAWCETT SECURITY OPERATIONS V ROSE

The court held that the employer of a security guard who had stolen goods
entrusted to him to guard was not liable because the guard had acted
outside his mandate. This decision was criticised greatly.

Criticism
Employers are held liable not because of any morally irreprehensible
conduct on their part but for a number of reasons including that they’re the
ones who have created the risk that has resulted in the harm to innocent
third parties.
Employers are in a much better position to compensate the third parties
than the employees. The scope of employment may include acts done after
hours or outside the mandate instructed by the employer.

BITI V MINISTER OF STATE SECURITY

Involved a driver who was not actively on duty, but who was on call and
required to look after a company vehicle overnight as well as to collect some

126
employees in the morning. On the occasion in question, the worker, possibly
drunk, rammed into another car causing serious injury to the driver of that
car

It was held that the employer by entrusting a motor vehicle to a relatively

low paid employee overnight had placed an enormous temptation in the
driver’s way.

DUTIES OF THE EMPLOYEE

To provide service
Duty of competence and efficiency
Duty of subordination
Duty of good faith

UNFAIR DISMISSAL

Dismissal must be substantively and procedurally fair. Any dismissal that is

not procedurally and substantively fair is unfair. Substantive fairness
means there must be a reason for dismissal. Termination must be a
sanction of last resort. Procedural fairness requires that all procedures have
to be complied with in terms of the Act, code or any other regulations.

TERMINATION OF CONTRACT OF EMPLOYMENT

1. By agreement through:
a. Effluxion of time
b. Notice of termination
2. Impossibility of performance, death of employer or employee, insolvency of
the employer.
3. Cancellation of employment because of misconduct
4. Retrenchment of employees

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