INTRODUCTION

TO THE LAW OF
CONTRACT
2022
Dr Innocent Maja/ Walter
Makhuyana
 What is a contract?
 A contract is a legally enforceable agreement.
Legal requirements
 Offer and acceptance
 Consensus ad idem.
 Animus contrahendi
 Contractual capacity
 Possibility to perform
 Clarity
 Formalities
 Legality
 BASIC CONCEPTS
 Concept of obligations – contracts should create legally binding
obligations. Debtor – a party with a duty to render performance.
Creditor – a party with a right to receive performance.
Unilateral, bilateral and reciprocal (exchanged) performance

 Concept of terms, Essential terms – they identify the type of a

contract. Legal terms – prescribed by law. Residual terms –
special provisions eg voetstoots clauses.

 Concept of Performance – a party has to perform. Dare (give),

facere (do) and non-facere (refrain from doing) something

 
 Theories of contractual liability
They explain why contracts should be binding.
 Declaratory theory – contracts declare the intentions of
the parties e.g caveat subscriptor, sanctity of contract
 Will or consensual theory – contracts express the free
will of parties e.g consensus ad idem
 Reliance theory – contracts creates an impression that
parties had reached consensus and the other party
reasonably relied on this impression- quasi-mutual
assent
 Doctrines
Foundational principles
 Freedom of contract – a person is free to enter into a
contract without governmental interference or restriction.
Exceptions include legality, monopolies, standard form
contracts
 Sanctity of contract – a contract is sacrosanct eg caveat
subscriptor. Exceptio – severability
 Privity of contract – contractual remedies are enforceable by
and against parties to a contract. Exceptions include
undisclosed principal, trusts, stipulation alteri (contracts
made for the benefit of third parties), statutory exceptions
 Sources of law of contract
1. Statute
 This refers to pieces of legislation passed by
Parliament and any subsidiary enactments
authorised by Parliament
 These include the Constitution, Acts of
Parliament and by laws.
 Statutes are a supreme source of the law
and override all other sources of law that
are inconsistent with statutes
2. Common law
 Refers to the law that applied at the Cape of
Good Hope on 10 June 1891 as modified by
statute (section 192 of the 2013 Constitution
as read with section 89 of the Lancaster House
Constitution).
 Roman Dutch Law with English elements
 It usually finds expression in court decisions.
 Our lectures will refer to case law extensively
(Zimbabwean, South African and where
applicable, English case law)
3. Custom
 Certain, reasonable, clear and uniformly observed
rules.
 It comes in two forms namely (a) African
customary law (that has limited application in
Commercial law) and (b) trade usage (in the case
of commercial law, this refers to the law of
merchants). Examples include the trade usage for
bankers to charge interest on overdrafts.
 The custom should be long established, universal,
uniformly observed, well known, reasonable,
certain and consistent with general principles of
contract.
4. Authoritative texts
 Writings by leading authorities in the field of law
 They include treatises written by Roman Dutch
jurists and modern textbooks & scholarly articles.
 They can be used as persuasive authority. L
Madhuku (in An Introduction to Zimbabwean Law)
argues that ‘The persuasive nature of an opinion
of an author depends, inter alia, on the standing
of the author in the field of law in question, the
reputation of the author among judges, the
scholarly level of the piece of work involved and
the degree to which the nature of the
presentation is convincing.”