The Law of Contract

MR S. KAPHUKA
INTRODUCTION

 Most familiar Legal Concept

 Essential in our daily lives
 Lies at the heart of capitalist society

 Define what a contract is

WHAT IS A CONTRACT?

 “ A PROMISE OR A SET OF PROMISES FOR THE BREACH OF WHICH

THE LAW PROVIDES A REMEDY OR THE PERFORMANCE OF WHICH
THE LAW IN SOME WAY RECOGNISES A DUTY.”

 Essentially a contract is an agreement

 A contract is a LEGALLY ENFORCEABLE PROMISE
HOW TO DETERMINE IF LEGALLY
ENFORCEABLE ?
 1. The way in which they are made

 2. By whom they are made

 3. For what purpose they are made

Sources of the law of Contract

 The two most important sources are:

CASE LAW
STATUTE
CASE LAW

Decided by judges
Feature of a common law legal system
SLADE V MORLEY [1602]

 LORD POPHAM –

“EVERY CONTRACT
IMPORTETH IN ITSELF AN
ASSUMPTION”
LUKE v LYDE (1759)

Mercantile law is not the law of a

particular country but the law of
all nations
Legislation and Statute

- Parliament
 SALE OF GOODS ACT CAP 48.01 Vol. VII Laws of Malawi
 The Competition and Fair Trading Act Cap 48.09 Vol. VII
 Consumer Protection Act Cap 48.01 Vol. VII
 Law of Property Act
 Employment Act
 Banking Act
 Hire Purchase Act
 Convention on Contracts for International Sales (CISG)
 International Institute for Unification of Private Law (UNIDROIT)
Different types of contracts

 Sale
of Goods Act, Consumer Protection Act =
CONSUMER CONTRACTS
 Law of Property Act = PROPERTY CONTRACTS
 Employment Act = EMPLOYMENT
CONTRACTS
ELEMENTS OF A CONTRACT

 1. OFFER
 2. ACCEPTANCE
 3. INTENTION TO BE LEGALLY BOUND
 4. CERTAINTY
 5. CAPACITY
 6. Consideration
THE HISTORY OF CONTRACT LAW

 SIR HENRY MAINE

 “THE MOVEMENT OF THE PROGRESSIVE SOCIETIES HAS BEEN A
MOVEMENTFROM STATUS TO CONTRACT”
COMMUNISM
PRINTING and NUMERICAL
REGISTRY Co. V SAMSON
 Sir George Jessel MR:

“Contracts when entered into freely and

voluntarily shall be held sacred and shall be
enforced by the courts of justice.”
- Lex Mercatoria
ENGLISH LAW’s First Treatise 1188

RANULF De GLANVILLE

Defined legal process for the first time

Revolutionary systematic codification

King Henry III

1266 – Charter to Trade

LORD MANSFIELD

 ‘The law of merchants and the law of the land is

the same.’
20th Century

A shiftfrom an absolute freedom of

contract to some regulation in different
forms