ESSENTIAL

ELEMENTS OF
A VALID
CONTRACT-
PART 1
Dr Innocent Maja/Walter
Makhuyana
 2. AGREEMENT
 Parties must agree on who the parties to a
contract are as well as the rights and obligations
created by the contract
 There must be subjective agreement, meeting of
the minds/consensus ad idem/coincidence of wills
Court’s approach to consensus
1. The subjective approach where consensus is
expressed (Pieters & Co v Salomon) 1911 AD 121 137
2. An objective approach that establishes consensus
from the conduct of the parties (quasi mutual assent
or agreement by conduct). Municipality of Victoria
Falls v Nyathi and Others HB-2-12.
 Smith v Hughes (1871) 6 QB 597 @ 607 held that ‘If
whatever a man’s real intention may be, he so
conducts himself that a reasonable man would believe
that he was assenting to the terms proposed by the
other party and that other party upon that belief
enters into the contract with him, the man thus
conducting himself would be equally bound as if he
had intended to agree to the other party’s terms.’
 NB – There is no need for the party pleading quasi
mutual assent to prove fault, wrongfulness,
unlawfulness, or prejudice. He simply needs to prove
that the conduct of the other party led him (as a
reasonable person) to believe that he is binding
himself.
 3. ANIMUS CONTRAHENDI
 Parties must have an intention to enter into
binding contractual relations
 Zimbabwean courts have divided contracts
into two to establish animus contrahendi:
1. Commercial transaction – are generally
presumed to create legally binding obligations.
2. Social agreements – are generally presumed
not to create legally binding obligations unless
there are special arrangements to allow for that
(Balfour v Balfour (1919) 2 KB 571
 4. POSSIBILITY TO PERFORM
Parties must agree on things that are within human capability to
perform
 If performance is objectively impossible, then the contract
will be void ab initio
 Impossibility is classified into two:
(a) Factual impossibility – subjective impossibility does not
invalidate a contract. Only objective impossibility invalidates
a contract.
(b) Legal impossibility – occurs when there is a legal rule or
factor that prevents on party from performing. It invalidates
a contract
 5. FORMALITIES
The general rule is that no formalities are required for a
valid contract to be formed
 However, formalities are required in the following
circumstances:
A. Statutory formalities – where a statute mandates certain
contracts to be reduced into writing e.g section 5 of the
Hire Purchase Act, section 7 of the Contractual Penalties
Act and section 48 of the Companies Act
B. Self imposed formalities – when parties impose
formalities e.g non-variation clauses
 6. CERTAINTY OR CLARITY
 Terms of a contract must be clear and certain.
They should not be vague
 Chikoma v Mukweza 1998 (1) ZLR 541 (S) held that
‘The approach that the courts will adopt to the
issue of whether a contract is void for vagueness
will be to help the parties towards what they both
intended rather than obstruct them by legal
subtleties and allow one of the parties to escape
the consequences of all he has done and all he has
intended. The courts will interpret contracts fairly
and broadly, without being too quick to find
defects…’
 Categories of contracts void for
vagueness
 Contracts that are apparently incomplete and are shown by
evidence to be complete. Courts uphold them
 Contracts where the vague and uncertain language indicates
that parties did not reach an agreement on a material term
of a contract. Courts do not enforce them
 Contracts that reserve an unlimited option to the promissor.
Courts do not enforce them.
 Incomplete contracts where the unspecified details are
questions of fact incapable of determination by evidence.
Not enforceable.