Introduction To Law: Law of Contract /agreement

INTRODUCTION TO LAW
LAW OF CONTRACT /AGREEMENT

INTRODUCTION
• The heart of a contract is its enforceability
• DEFINITION: A contract is an enforceable
agreement. It is a lawful agreement made by
two or more persons within the limits of their
contractual capacity and with a serious
intention of creating a lawful obligation,
communicating such intentions without
vagueness each to the other and being the
same mind to perform positive acts.
ESSENTIAL REQUIREMENTS
1. The parties must communicate their intentions to
each other through the medium of offer and
acceptance.
Offer + Acceptance = Contract
2. The parties must have Locus standi
“ Locus standi in judicio”- to be in position to sue and
be sued. Anybody 18 years and above acquires locus
standi in judicio. You cannot sue an infant (below
7years), a certified idiot, but a minor can be sued
(between 7 & 18years).
3. The parties must seriously intend to enter into a
contract. Must have “Animus contrahendi” – serious
intention to be bound.
4. The agreement must not be vague or should not be
“ void for vagueness”. In case of dispute the court
will get to the bottom of the case to get the serious
intentions of the parties to the contract. Was there a
“ Consensus Ad Idem” – a marriage of minds , that
is speaking the same language manifest through
offer and acceptance
• If the contact is “Void AB Initio” then there was never a
contract thus it is void. Eg X tells M to Kill D a business
rival for a reward of $10 000, or X in error marries Y who
happen to be his aunt. This marriage is void AB initio.
There was never a marriage. What X would get is an
“annulment”; or an infant is offered to someone in
marriage. This is a legal nullity. A “Voidable” agreement
is a contract with defects. The injured party can sue
citing that there was no consensus ad idem. A Voidable
contract remains in force until set aside by the
weaker/injured party.
5. The performance of the contract should be possible. If
there is physical impossibilities from the word go then
it is void AB initio since the parties cannot give effect
to their agreement.
6. Legal- an agreement involving murder, immorality etc
is void AB initio- it is not enforceable. The agreement
would be “Contra Bones Mores” –contrary to good
public morality.
7. Be of the same mind to the subject of the contract-
consensus ad idem- singing from the same hymn book.
OFFER AND ACCEPTANCE
• An Offer is an unequivocal and unconditional
business proposition whose unqualified
acceptance results in a contract-
• invitation to treat/trade – this involves a
preliminary discussion if accepted by the other
party will result in an agreement- an
advertisement or display at the window does
not mean a firm offer. Case Crawley Vs Rex
1909
• Case Crawley Vs Rex 1909
• Facts: A Johannesburg shopkeeper displayed a placard outside
his shop advertising tobacco at a cheap price. Mr Crawley came
into the shop, bought some tobacco. He returned later for
another instalment and the shopkeeper refused, and when
Crawley repeatedly ignored the shopkeeper's request - made in
front of a policeman that he should leave the shop- Crawley
was arrested. When prosecuted he claimed that he had every
right to be in the shop, since he and the shop keeper had a
contract, which had not yet been carried out . To Mr Crawley
the display of the tobacco amounted to an offer, which he had
accepted
• Case Crawley Vs Rex 1909
• Court: Pronounced on the validity of Mr Crawley’s
argument – there was no contract. It was quite clear
that the display of an article with a price at the
window is merely an invitation to a treat.
• Principle: Shopkeeper’s advertised prices are not
offers, but merely invitation to do business, and
therefore there can not be complied to sell. Rather, it
is the potential buyer who responds with an offer – in
turn –may be accepted or rejected by the shop keeper.
IMPLICATION OF OFFER AND ACCEPTANCE
1. Usually offer is made to one individual but

there are cases where an offer is made to the
whole world. Case: Carhill Vs Carbonic
Smoke Ball
2. The offeree is expected to accept the offer he
is aware of. A contractual situation cannot
arise from a “blind date”. Case: Bloom Vs
Swiss Watch Company (ASWC)
3. In situations where there is one reward available

then the reward would go to the first person to
bring the information freely and voluntary. Case:
Lee Vs American Swiss Watch Company (ASWC)
4. It is up to the offeror to define the rules of
engagement- the methods and manner of
acceptance and time, for example acceptance
has to be done telephonically within 7 days
Case: Laws Vs Rutherford (1924)
• Case: Carhill Vs Carbonic Smoke Ball

• Fact: The company advertised in the press that
it will give a reward of $100 to any customer
who had used its medicine in a particular way
for some time and went on to catch influenza.
Mrs Carhill bought the said medicine and used
it in a prescribed manner, and despite all this
she caught influenza and sued the company.
The company had a variety of pleas /defence:
• Case: Carhill Vs Carbonic Smoke Ball

 This was not a firm order but an invitation to treat.
 This was an offer targeted at nobody but at
everybody that it would not be possible for the
company to be bound to everybody.
• Court: Shot down both pleas and upheld that the
company can only contract with customers who used
the medicine in the prescribed manner – there was a
contract between the company and Mrs Carhill
• Case: Bloom Vs Swiss Watch Company (ASWC)

• Facts: The company premises were broken into and
jewellery stolen. The respondent advertised offering reward
to the public for information leading to the arrest of the
thieves. Mr Bloom witnessed the heist (incident) and
reported the matter to the police, who recovered the said
jewellery. It was common cause (not in dispute) that Bloom
was not aware of the existence of an offer. Upon learning of
the offer he tried to lay a claim, which the company refused.
• Court: Bloom was not entitled to the reward because he
could not accept an offer that he was not aware of.
• Case: Lee Vs American Swiss Watch Company

(ASWC)
• Facts: The same as in Bloom Vs ASWC. When
Lee gave information to the police he was
aware of the offer, he did so after Bloom.
• Court: Held that information is not information
unless it contains something substantially new-
Ratio decidendi- Lee’s information was
redundant.
• Case: Laws Vs Rutherford (1924)

• Facts: Mrs Rutherford offered Mr Laws a contract to cut
timber on her farm subject to offer being accepted by a
given time ( 28 July) , and accepted by a way of a registered
post. On the 29th Law simply moved to the farm and started
cutting timber
• Court: The acceptance has not been done by (1) registered
post, and (2) Mr Laws went to the farm on the 29th July a
day after the lapse of the offer. Mrs Rutherford got an
interdict order (prohibiting order (civil remedy/ peace
order(criminal remedy)) barring Mr Laws from the farm.
CONTRACTUAL CAPABILITY- LOCUS STANDI
IN JUDICIO(Lsj)
He who desires to enter into a contract must enjoy LSJ-
The legal competency to sue and be sued- a legal leg to
stand on.
1. Legal age of majority
2. Mental illness
3. Prodigals
4. Drunkenness
5. Artificial persons- Incorporated association
6. Partnership
7. Minors
IN JUDICIO(Lsj)
1. Legal age of Majority
• Case: Jonh Katekwe Vs Mhondoro Muchabaiwa
1984
• Court: A girl who had gone past 18 years could
sue for seduction damages or a delict- a private
wrong or tort. This was a land mark case- one
that makes legal history. Anyone 18years
acquires LSJ unless one is prodigal, or a certified
idiot. In such a case one requires a curator bonis
IN JUDICIO(Lsj)
2. Mental illness
• An agreement where one of the members is
inflicted with mental illness or idiocy is Void
Ab Intio- it is a legal nullity of no force or
effect
• Case: Uys Vs Uys
IN JUDICIO(Lsj)
3. Prodigals- are people who handle their
estate/assets in an extremely careless and
imprudent way. The court will have to declare them
as incapable of handling their own affairs as a result
of the propensity to spend their wealth and
squandering their estate recklessly. Once declared a
prodigal, a curator bonis is appointed- one’s legal
protector or mentor in relation to one’s proprietary
interests
• Case: Cillie Vs Cillie
IN JUDICIO(Lsj)
4. Drunkenness
A contract can be set aside on the basis of
drunkenness – if someone is so drunk to an extent of
incapability to understand the nature of the contract.
The onus to prove that one can not be bound to an
extend of not understanding the contract lies with
the one who was drunk. If the levels of drunkenness
were of such a nature that the affected person was
easily persuadable then that would not be sufficient
for setting aside the contract
IN JUDICIO(Lsj)
5. Artificial persons- Incorporated association
Once an organisation is incorporated in terms of the company
act chapter 24:03. It acquires the ability to sue and to be sued.
Section 9 of the act reads “Upon incorporation a company
shall have the capacity and powers of a natural person in full
capacity in so much as a body corporate is capable of
exercising such powers” The same is true for universities and
parastatals. Once a company is registered it acquires legal
personality and it can get into contract or out of contract in
terms of its constitution or its articles of association
• Case: Solomon Vs Solomon and company
IN JUDICIO(Lsj)
• Case: Uys Vs Uys
• Facts: One afternoon Mr Uys met his future wife in a cafe in Port
Elizabeth and continued their association later that evening at a
cinema. He told her that he owned a farm in the free state and that
he was finding it difficult to manage it by himself. He said he wished
to marry her and proceeded to marry the following morning. Soon
afterwards Mrs Uys noticed conducts of a peculiar and irrational
nature that something was amiss. Mr Uys did not own a farm but was
suffering from mental delusion. Evidence was led and showed that
Mr Uys was unable to appreciate the nature of the marriage
covenant.
• Court: Annulled the marriage on the basis of one of capacity absence.
Mr Uys lacked LSJ.
IN JUDICIO(Lsj)
• Case: Cillie Vs Cillie
• Facts: A wife alleged that her husband from
whom she was separated was squandering his
assets and continually under the influence of
liquor. Upon verification of the facts Mr Cillie was
declared a prodigal by the court and a curator
bonis was duly appointed. The curator bonis legal
brief is to protect the material/proprietary
interests and not his other personal interests
IN JUDICIO(Lsj)
• Case: Solomon Vs Solomon and company
• Facts: Solomon, a leather merchant/ trader sold his boot- manufacturing
business to a company he got shares, and also lend money to the company
and by way of security he got debentures in the company. After a year of
trading the company ran into problems and was wound up. A liquidator was
appointed to reside over the orderly dissolution of the company. The
liquidator got a claim among other creditors from Mr Solomon. He argued
that Solomon was not entitled to repayment. Mr Solomon owned 98% of the
shares. There was no distinction between Mr Solomon the natural persona
and Solomon & Company the artificial persona
• Court: Shot down the liquidator’s argument recognizing the distinction
between the shareholder and the company. The shareholder does not own
the company. Natural persons are different from artificial persons even
though they have shares in the company.
TERMINATION THROUGH BREACH
Definition: Breach is a violation of material
aspect of the agreement. It involves conducts
which are inconsistent with proper
performance of the agreement. Can be
through the following ways:
1. Repudiation
2. Mora
3. Mal- Performance
1. Repudiation
Where the debtor (the person to whom performance is due)
shows a clear intention to be no longer bound eg a house that
has been let to A by the lessee is re-let to B, or a situation of
double sale of a car. The creditor could accept repudiation
and sue when the time of performance is due. Alternatively
he can refuse the repudiation and sue for specific/exact
performance originally envisaged in the contract by the
parties. Damages are the monetary equivalents to
performance. Specific performance is given at discretion of
courts- courts may refuse to grant specific consideration.
2. Mora
Mora is delaying performance without lawful excuse where
time is a material aspect of performance eg performance to
be done within 7 days. Commercial agreements are
accompanied by lex commissoria (foreclosure or forfeiture),
which is a penalty clause in an agreement, which empowers
to cancel the contract. The debtor can be in mora if time is
of essence – when it is clear to a reasonable person that
performance has to be rendered without delay eg Gushungo
phones ambulance to come as his wife is in labour and the
ambulance comes 2 weeks later.
3. Mal- Performance
When the debtor under performs either in
terms of quality or quantity eg Kudzai, a
butcher is supposed to deliver to a city cafe
100kg of high quality beef but delivers 50kg,
or she delivers 100kg of offal.
REMEDIES FOR BREACH OF CONTRACT
The main remedies available in our

jurisprudence are:
1. Interdict
2. Cancellation
3. Specific performance
4. Damages
1. Interdict (Pendite Lite)
An interdict is an extraordinary remedy given in an extraordinary
situation. It is a prohibitory order, which makes it mandatory for the
concerned party to refrain from doing what has been mentioned in the
order in which the applicant would have to show that if the interdict is
not given an irreparable harm would be done. An interdict shows
urgency.
• This remedy is granted by a magistrate on the sole basis of his authority ,
against a breach of civil law for which there is no stipulated remedy.
INTERDICT
 the two types of interdict are:
 1) Prohibitory interdict : Stops a person from
doing a specific wrong act. For example
parents of a minor female in Canada obtained
an interdict to stop a married man from seeing
their daughter
 2) a mandatory interdict : it directs a person in
doing what is in the law
Case study of interdict
• The CONTRACT: On 2 June 2011, Zalo Construction entered a verbal
contract with Patrick Zhou to construct a shopping mall .
• Zalo construction performed work on the shopping mall between 2
June and 10 December.
• The BREACH: On 14 December Patrick Zhou cancelled the verbal
agreement and chased away Zalo construction co and hired Drastic
Construction Co.
• Zalo construction applied to the court claiming that the said conduct is
unlawful and wrongful and has caused the applicant’s financial
prejudice
• Patrick Zhou’s defence is that Zalo construction entered this agreement
with a company known as Perth and Dell in which he was one of the
directors
Case study of interdict
• Court Remedy
• Patrick Zhou was hereby permanently
interdicted from chasing away Zalo
Construction company as the sole constructor
of the above mentioned site
• Patrick Zhou paid the cost of this application
on an attorney-client scale
2. Specific performance
This is exact performance. The courts approach is
that a party who is willing and able to observe
the obligations on his part is also entitled to
expect the other party to perform- not surrogate
performance. In other exceptional circumstances
the court may decline to grant specific
performance.
Case: Farmers’ Cooperative Society Vs Berry 1912
• Situations where specific performance is not available:
• Where it is felt that damages can adequately remedy the
loss.
• Where the claim by creditor is easily available on the
market and is not a rare/unique/extraordinary commodity
• In contracts envisaged the rendering of personal
performance (marriage/employment)
• Where unreasonable hardship will be caused on the
debtor and the public
• Case:Haynes Vs Kingwilliamstown Municipality
Case on specific performance
• Facts: The Kingwilliamstown Municipality was obliged
under a 1911 agreement to release to Mrs Haynes
250,000 gallons of water daily from its storage dam. This
agreement was fully carried out until 22 April 1949 when,
due to drought and in order to relieve the consequent
shortage of water plus concomitant threat to health in
Kingwilliamstown, Mrs Haynes water allocation was
reduced to between 1,500 and 2,000 gallons daily.
Although she had adequate water from other sources,
Mrs Haynes sued for specific performance.
• Court: Against Mrs Haynes, because, although a
plaintiff has a right (which the defendant has
not) to choose between claiming specific
performance or damages and although the
court will as far as possible give effect to a
plaintiff's choice to claim specific performance,
it has a discretion in a fitting case to refuse to
decree specific performance
• Arty is an art dealer. He acquires a rare, ancient Egyptian statue
that is thought to have belonged to Cleopatra. Andrea collects
Egyptian art and makes a sizable offer to buy the piece. Arty
agrees, and the two make a valid legal contract.
• Arty then decides that he'd rather keep the piece for now. He
breaches his contract with Andrea. Andrea sues Arty for breach
of contract. The court decides that the piece is truly priceless,
and Andrea can't acquire another comparable piece no matter
how much money the court awards her. Instead, the court
decides that Arty should comply with the terms of the contract,
and sell the piece to Andrea for the price she already agreed to
pay. This is specific performance.
• Case: Farmers’ Cooperative Society Vs Berry 1912
• Facts: Berry- obliged as a member of the farmers
Cooperative Society to deliver his whole crop to the society
– nevertheless he refused to deliver a crop of 1,200 bags of
mealies as agreed. Consequently the society sued for
specific performance or alternatively –damages of $765,
being the computed additional cost to the society of
replacing the 1,200 bags through the open marketing order
to fulfil the society’s own contractual obligations to deliver
to various merchants. Though at the trial no damage was
shown to have actually been caused in this manner
• Case: Farmers’ Cooperative Society Vs Berry 1912
• Court: On appeal, that the Society had indeed failed to prove any portion of its
damages as laid.. But that only disposes of the alternative claims as framed ; the
question of whether specific performance should be decreed.. Still remains. In
which regard, the court ruled in favour of the Society and a grant of specific
performance, because basically, every party to a binding agreement who is ready
to carry out his own obligation under it has a right to demand from the other
party, so far as it is possible, a performance of his undertaking in terms of the
contract. It is true that courts will exercise discretion in determining whether or
not decrees of specific performance should be made. They will not of course be
issued where it is impossible for the defendant to comply with them. And there
are many cases where an award of damages can fully and conveniently do justice
between the parties. But that is a different thing from saying that a defendant
who has broken his undertaking has the option to purge his default by the
payment of money
3. Damages
Damages are the monetary equivalent of specific
performance. Courts would like to place the injured part in
a position that he would have occupied through the
payment of money and without hardship to the debtor.
Contractual damages emanate from breach of contract.
Delict damages emanate from situation where there is no
contract. The damages are not meant to punish the debtor
– they should not be vindictive. They are meant to place
the injured person on a position he would he occupied had
the contract been performed.
Types of Damages
• Expectation Damages: amount awarded based on the expected profit or
monetary benefit the plaintiff expected to receive
• Reliance Damages: monetary value of the time, effort, and expenditures
the plaintiff wasted in preparation for performance
• Account of profits : defendant ends up with a gain as a result of the
breach, plaintiff may sue for damages based on that gain
• Nominal Damages: neither a loss for the plaintiff nor a gain for the
• defendant,
• symbolic damages: may be awarded in very small amounts
• Liquidated Damages :amount of damages agreed to in advance by the
parties for breach of contract
• Punitive Damages :these damages are intended to punish the defendant
and discourage bad behaviour.
• General Guidelines in Assessing Appropriate
Damages
1. Damages must be direct
Courts insist damages should be direct not
indirect . Direct damages flow naturally from the
breach- they are not remote. Damages must be
within the contemplation of the parties so much
that a reasonable person would agree that the
damages are a direct consequence of the breach.
Damages
2. Mitigation of Losses
The injured part must mitigate his losses as a
reasonable person. He is expected to take practical
steps to curtail his losses eg a contractor relocates
else where before completes the contract- you would
naturally take steps to minimise loss. The debtor
should not take unreasonable/ extraordinary steps to
mitigate his damages
Damages
3. Avoid unjust enrichment
These setbacks are meant to ensure that the
injured party is overly paid and that the debtor
should not be unreasonably punished. Damages
are meant for patrimonial (quantifiable) loss
and not normally for sentimental loss.
Case on Damages
Smith, Hogg & Co v Black Sea Insurance (1940)
A shipowner was held liable to a charterer in

damages for loss of a cargo which had been
caused by a combination of perils of the sea and
the unseaworthiness of the ship. The latter was
sufficient to carry a claim for damages.
Case on Damages
• Stansbie v Troman (1948)
A painter in breach of contract after he had
completed decorations, left unlocked a house,
which was later burgled by thieves. The
defendant was held liable for the value of
goods taken as this was exactly the sort of loss
he should have guarded against and foreseen.
Cancellation
There are three requirements for cancellation:
I. The right to cancel

 Cancellation is allowed where the other party is in mora, has
repudiated the contract or committed a breach going to the root of
the contract.
II. The ability to restore performance received
 The party seeking cancellation should be able to return any
performance that they received in terms of the contract or restore
the monetary equivalence of the original performance. An innocent
party that is unable to restore performance may be allowed to
cancel the contract if his inability is not due to his fault.
Cancelllation
III. The exercise of the right to cancel
 The right to cancel is exercised by way of a notice of
cancellation expressing the intention to cancel the
contract
• This does not require agreement by defaulting party
or confirmation by a court
 Innocent party loses the right to cancel if he elects to
uphold the contract or delays cancellation in a way
that makes the other party believe that the innocent
party has elected to uphold the contract
Cancellation
• Cancellation should be an unqualified,
immediate(ex nunc) and final decision to treat
the contract as at end. Notice of cancellation
that purports to cancel a contract at a future
date is not a proper cancellation at law.
Case on cancellation
• in the case of the Chitehwe vs Chiroodza [zwsc103, 2002], the
apellant had purchased land from the respondent in terms of a
contract of sale
• the contract stipulated that an initial deposit would be paid,
followed by monthly installments which would commence on
an agreed upon date
• the apellant was accordingly evicted as he had been in breach
of contract by failing to pay the monthly installments as agreed
upon
• since the payment of the price was at the root of the contract,
the respondent was entitled to choose to cancel the agreement
which was done in reasonable time, after a letter of demand
had been sent, which the apellant failed to comply to
CONTRACT OF SALE OF GOODS
• Sale is a classic example of a contract and the
three essential requirements of a sale are the
following:
1. Agreement the common offer+ acceptance less
undue influence, illegality, void ability, mistake
and lack of consensus ad idem
2. Merx or the identity of the merchandise
3. The pretium or price- the modalities of arriving
at the price
CONTRACT OF SALE OF GOODS
• Merx should be merchantable that is, being
capable of being sold or bought- it can either
be tangible or intangible
• Price/pretium has to be in the form of
money. If it seizes to be money then its not a
sale. The price has to be reasonable that is
must bear a reasonable correlation ship with
the market price
TYPES OF SALES
1. Cash Sale
Ownership passes from seller to purchaser upon
payment of purchase price and delivery. Delivery
can either be actual or fictional. Actual delivery
involves TRADITIO (physical hand over). Fictional
delivery has the same effect as actual delivery- the
difference is that the merx or res may already be in
the hands of the transferee through an earlier
agreement other than sale eg through a loan
TYPES OF SALES
1. Cash Sale
Examples of fictional delivery are:
Traditio Brevi Manu- the purchaser already
has the merx eg an ox loaned to him which he
now wants to purchase.
Traditio Longa Manu- delivery by the long
hand pointing to the merx eg lobola cattle
TYPES OF SALES
2. Credit Sale
Ownership passes at the time of delivery-
actual or fictional constructive delivery. For a
hire purchase ownership passes from the seller
to the purchaser upon payment of the last
instalment. Sales of immovable property
(house/stand)- ownership passes from seller to
purchaser upon registration at the deeds
office.
TYPES OF SALES
3. Voetstoots Sale
The merx or res is sold as it is with all its
defects if any. The seller absolves himself of
responsibility in the event that the merx is
latently defective. A latent defect is a hidden
defect that is not easily discoverable by a
reasonable man upon a reasonable inspection
eg cancer of the lung in an animal. With a
patent defect the caveat emptor rule applies.
TYPES OF SALES
3. Voetstoots Sale cont
Caveat Emptor
He who buys an item is expected to have inspected and
acquainted himself with what he is purchasing- if it has a
defect the purchaser has no remedy. If the purchaser is
unable to discover a defect, which only an expert can
discover, there is still a latent defect and the law gives
the purchaser a remedy where the merx was latently
defective at the time of the conclusion of the sale or at
any rate prior to the conclusion of the agreement
TYPES OF SALES
• Caveat Emptor cont
If the latent defect supervenes to the conclusion of the
agreement it becomes a risk that must be borne by the
purchaser. Under the roman Dutch law the purchaser who
has not yet benefited from the purchase is entitled to the
remedy for the latent defect. Where the seller is
fraudulent and sells the article voetstoots which he
knows to be latently defective without disclosing the
defect to the purchaser- the law says that he is not
entitled to the protection offered by the voetstoots
clause. Case Matambo Vs Chakauya
TYPES OF SALES
• Caveat Emptor cont
Matambo Vs Chakauya
Facts: The plaintiff bought a house in Marlborough
voestoots. When the rain fell he discovered that the roof
was leaking heavily. He sued in the high court for
rescission of the contract. The seller in his plea invoked
the voetstoots clause. There was evidence establishing
the seller mala fide that he was being fraudulent
Court: The voetstoots clause was rendered useless and
inoperable on account of the sellers fraudulent conduct.
THE LAW OF DELICT
• A Delict is a wrongful act or an omission by an individual that
infringes the legal rights of another to life, person, property,
liberty or reputation to which the injured person could claim
redress in the form of compensation
• Types of Delict
1. Those that infringes a person’s rights to property, person, or life
and resulting in material or pecuniary (quantifiable) loss. E.g. loss
of wages, medical bills, loss of business contracts, etc. These should
be in terms of monetary value.
2. Those that infringe the personality rights – dignity, reputation,
or liberty of another and generally involve insults, adultery and
others.
LIABILITIES UNDER MATERIAL/PECUNIARY
LOSSES
• Actual wrongdoing with material loss as a result of defendant’s actions eg

Damage to property, and injury to another person.
NB, Injury must have been intentional or due to Negligence.
Intention (Dolus)
• The wrongdoer must have foreseen and desired the consequences of his
act and must have known that the act was wrongful.
Negligence (Culpa)
• It consist of failure to exercise care. E.g. jumping from top of the roof /
ladder etc.
• There is neglect of duty – leaving naked electric wires in pathways, poor
workmanship,
• Driving without a license and undertaking work without necessary skills.
LIABILITIES UNDER THE INFRINGEMENT OF
PERSONALITY RIGHTS LOSSESS
• There must be no justification to the wrongful
act and the act must be by commission and
not omission.
• It should be through an act of malicious and
deliberate.
DEFENCE FOR DELICT
• Statutory Authority
• Provided the act is performed in the manner prescribed by the law and
reasonable / practicable steps were taken to minimise harm.
• E.g. Motlante Commission – the state through the police and army, argued that it
had authority to protect the safety of the public. However, the Commission
gathered that the state used excessive force that resulted in the loss of 14 lives.
• Necessity
• In order to avoid greater wrong from imminent and actual danger.
• The actions taken must be reasonably necessary as in self-defence for one’s self,
family or property in the face of unlawful aggression, provided the force used is
proportionate to the urgency or danger.
• Eg. A farmer drove a swam of locusts which later settled on neighbour’s farm and
damaged his crops. The farmer was held not liable.
• You break someone’s door in order to escape fire.
DEFENCE FOR DELICT
• Consent by the Plaintiff ( Volenti non fit injuria)
• Volenti means there is no wrong to a person who agrees to it.
• Agreement may be express /implied.
• In Zimbabwe, Schools sign an agreement that no compensation for injuries that come as a
result of sporting activities.
• However, this principle (volenti) applies provided the plaintiff knew of the danger, appreciated
the consequences and consented voluntarily.
• E.g. An example would be being tackled in a rugby game. In the normal cause of events being
tackled could amount to assault. However, it is accepted that people who play rugby consent to
being tackled.
• Inevitable Accidents
• This should have prevented a person from performing a duty and his/her actions lead to injury.
• Examples:
• Act of God – Acts of nature, floods, cyclones, earthquake, and veld fires etc.
• Superior force or statutory authority - A person does not act wrongfully if he performs an act
while exercising a statutory authority.
DAMAGES IN DELICT
• Real and substantial damages awarded for actual loss suffered or presumed to
have been suffered.
• Patrimonial / Material Damages awarded for actual for actual pecuniary or
quantifiable loss.
• Sentimental Damages for wounded feelings, mental / physical pain or suffering.
• In some special cases, special exemplary or vindictive damages may be awarded.
• NB, Scope of Damages
• Damages takes into account the following:
• Aggravating circumstances – which increases the damage.e.g. running away
after causing an accident may result in heavy penults.
• Mitigating circumstances which decreases the damages. E.g. attending to
injured persons after involving them in accidents may result in reduced penalty
or fines.
DAMAGES IN DELICT
• Vicarious Liability
• This is the liability of one person for the delict of another.
• An employer is vicariously liable for the delict or wrongs committed by his
employees acting in the course and within the scope of his employment.
• The employer creates the risk that his employees may cause harm to others.
• The employer operates his business through his employees and makes profits
through that.
• Hence, for Vicarious liability to stand the following should be complied with:
• The person who commits the delict must be an employee and not an
independent contractor.
• The delict must have been committed while the employee was acting in the
course of and within the scope of employment.
CLASS WORK
• John, a learner driver, was taking his first driving lessons under the supervision of
Andrew, a driving instructor with Quick Licence Driving School. Andrew fell asleep
whilst supervising John, who then failed to stop at a stop sign and collided with
Dennis who was driving from the other direction. Dennis’s car was badly damaged
and the cost of the repairs will be about $5,000.
• Required:
• (a) In relation to the law of delict, explain the liability of John, Andrew and the
driving school respectively. 6
marks
• (b) Explain whether there can be a complete or partial defence to Dennis’s claim if
it can be proved that the damage to his car was considerably greater because he
was knowingly driving with faulty brakes.
4 marks
• (c) Explain the concept of damages as a remedy for breach of contract. 10
marks
CLASS WORK ANSWERS
• (a) In relation to the law of delict, explain the liability of John, Andrew and the driving school
respectively. 6 MARKS
• ANSWER
• The learner driver failed to stop at a stop sign and under normal circumstances, this would indicate
negligence, or culpa, which must be proved in order to establish liability. An accomplished and
licensed driver would be expected to exhibit more care and attention when approaching a stop sign.
• In light of the fact that John was a learner driver taking his first lessons in driving, the standard of care
which is applied to him is that of a trainee driver taking his first lessons in driving.
• Andrew the driving instructor was grossly negligent in not properly supervising the trainee driver. A
reasonable driving instructor would not have fallen asleep whilst supervising a trainee driver.
• He or she would have foreseen the possibility of harm being occasioned to the plaintiff, if their trainee
driver was not properly supervised. Peattie and Others v Clan Syndicate (1984) and Mills v Farmery
(1989).
• Finally the driving school, Quick Licence Driving School, is vicariously liable for the delicts of its
employee. In Gwande v Matonhodze & Another (2002), the court noted that the position of
Zimbabwean law is that an employer is liable for the delicts of their employee committed in the
course of their duty or service.
CLASS WORK ANSWERS
• (b) Explain whether there can be a complete or partial defence to
Dennis’s claim if it can be proved that the damage to his car was
considerably greater because he was knowingly driving with faulty
brakes. 4 marks
• ANSWER
• Since the brakes of Dennis’s car were defective and as a result the
damages became more, it is a case of contributory negligence on his
part.
• Zimbabwean law requires that in cases involving contributory
negligence damages are to be reduced to an extent deemed just and
equitable if the fault of the claimant contributed to their damages,
Koen v Keates (1989). Therefore Dennis can only recover damages up
to 50% of the total cost.
CLASS WORK ANSWERS
• (c) Explain the concept of damages as a remedy for breach of contract. 10
marks
• ANSWER
• What has been lost should have a monetary value 2 marks
• Damages must not be remote but should be awarded to compensate direct
actions of the defendant. 2 marks
• The court does not seek to punish anyone with damages 2 marks
• The court does not seek to enrich the injured part but to retain the parties to
their pre contractual state 2 marks
• Sentimental loss damages can be guaranteed to example emotional injury/loss 2
marks
• Mitigation. The injured part must be in a place to cover some of their loss 2
marks
• Damages is awarded as of right 2 marks
FORMS OF BUSINESS
• SOLE TRADER
• PARTNERSHIPS –Partnership act
• PRIVATE COMPANIES- Company act
• PUBLIC COMPANIES
• COOPERATIVES
• STATE OWNED ENTERPRISES

Introduction To Law: Law of Contract /agreement

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INTRODUCTION TO LAW

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