Ari Pregen - Law Contracts

1
1PRINCIPLES OF LAW
PRINCIPLES OF LAW
PART 1
The concept of Law – Define what is meant by the term Law
 LAW are rules established by authority to regulate the behaviour of members of a community, society
or country.
 LAW are legal rules.
 Law is a system of rules, usually enforced through a set of institutions. It shapes politics, economics
and society in numerous ways and serves as a primary social mediator of relations between people.
 Law- That which is laid down, ordained, or established. A rule or method according to which phenomenon or actions
co-exist or follow each other. Law, in its generic sense, is a body of rules of action or conduct prescribed by controlling
authority, and having binding legal force
ANALYSIS OF THE DEFINITION
“Bodies of rules governing human conduct”
 Law in its sense, prescribes what must, what may and what may not Be done. It is an
instrument designed to regulate human behaviour and order in the society.
“Recognized as binding by the state”
 When Law finds acceptance in the common Law it is regarded as binding by the state. Here
we are concerned with conscience of the individuals’ own view of what is wrong or right, i.e.
what an individual considers desirable or undesirable as regards conduct.
 e.g. Ethical principles like, “l must be helpful to others” or “l must respect my parents”.
 An ethical principle or rule is a code of conduct, which is carried personally by an individual
and acts as a motive to behave in a certain fashion. Such principles come about during the
course of a life of an individual. Law must conform to the prevailing sense of justice in a
community or it will fail to preserve peace.
“Enforcement”
 In order to ensure that rules of human conduct are obeyed by all the inhabitants of the state
it is necessary to have some form of compulsion or influence which induces them to comply
with the rules.
 No rule can be effective without the method of compulsion called a “sunction”
 NB: A Sunction is some unpleasant or inconvenient consequence which a person knows
beforehand will be inflicted on him if he doesn’t follow a rule.
 A breach of the Law often invites punishment in the form of imprisonment, a fine or
compensation. Associated with punishment, as far as the Law is concerned, are the
mechanisms to enforce these legal forms. Thus the police, courts and penal institutions are
set up to effect punishment. Such formal mechanisms are not evident in the field of ethics
and positive morality where censure and punishment are more subtle.

2
2PRINCIPLES OF LAW
The elements of Law and the difference between real and personal rights
PRINCIPLES OF A JUST LAW.
1. Equality
 Law consist of rules, which apply to all persons in the same condition. What applies to Sam
has equal application to Jeff, provided they fall in the same classification. Rich or poor,
employer or employee, all men are the same in the eyes of Law if they fall in the same class.
If Tom drives a car, Sam walks along the road and Dick cycles, they all fall into different
categories applicable to road users and rules applying to one do not necessarily apply to
others.
Each would be subject to Laws governing the activities they are engaged in:
 The fact that Jill drives a Datsun and Ben drives a Benz is immaterial to the application of
rules of negligence or Law against drunken driving.
 Exceptions to equality are insanity, minors but considerations must be based on distinctions
which are objective and logical.
 If B a Lawyer sexually abuses a minor and C a teacher commits the same offence, the Law
pertaining to the case will be applied equally regardless of status.
NB: these considerations must be based on distinctions which are both objective and logically
relevant.
2. Uniformity
 Uniformity simply means all people in all areas should be treated uniformly. The same Law
that applies to Joe in Gokwe should apply to Tom in Mutare, provided they have committed
a similar offence. If Mr. X a Lawyer in Harare and Mr. Z a bus driver in Kwekwe commits
the same offense, the legal fate that is visited upon them is identical. The aspect of authority
of the High Court ensures the uniform application of Law as far as possible. If a person is a
foreigner and commits a crime he/she is treated applying the principles of Law in that
country.
3. Certainty
 Certainty in the Law prescribes how a person must, or may, or may not act, and to that
extend it safeguards the rights and liberties of the people themselves. If X infringes Y’s right,
Y will know that because the rules of Law are certain a remedy lies in the courts.
 Inn the same way, people can order their affairs knowing what the legal consequences of a
particular course or courses of action will be.
 Certainty also acts as a limitation on the tries of fact in that they are bound to follow the
establishment rules of law as set out beforehand and in so doing silly or arbitrary decision
making is checked.
Requirements of certainty are:
 Rules must be formulated in clear and unambiguous terms;
 Law must be known i.e. new laws must be disclosed i.e. promulgated (made known). By
publication in the Government gazette. Once this process has been carried out, the legal
maxim IGNORANTIA LEX NEMINEM EXCUSAT (ignorance of the law excuses no
one) is said to apply.

3
3PRINCIPLES OF LAW
e.g. if an individual who has been out of the country in search of work for years contravenes
a new law published in his absence he is nevertheless guilt of the relevant offence although
he had no possible chance of having learnt the new law.
However, this concept has been subject to criticism in that in practice so many laws are
promulgated that even lawyers cannot possibly presume to know them all. The access to the
gazettes and the level of literacy of a person to be able to comprehend the gazette are other
issues of concern.
Despite all that, as things stand at present the maxim still applies in Zimbabwe.
4. Generality
 In order to be just the law must be consistant and it must be applied without distinction to
all persons of the same class and in the same circumstances. The general rule should remain
fixed as a constant and not to be varied arbitrarily from one case to the other simply because
of the magistrates or judges personal feelings.
5. Authority
 This applies to the Law enforcement machinery clothed in authority by parliament to
enforce Law equally, uniformly to all races, tribes and so on. Authority signifies that all Laws
used should be applied by only bodies given the authority.
6. Reasonableness
 According to VOET, (Legal Jurist), “Law must order what is honourable and prohibit what
is reprehensible”. This simply means law should be a code of conduct that governs society.
Law should be just in that, what is wrong to be treated as wrong and what is good to be
treated as good. Thus arbitrary, absurd and senseless rules will tend to be disobeyed. The
concept of “reasonableness” or “the reasonable person “ is of wide application in our legal
system and if the law expects those to whom it applies to behave reasonably, then surely the
law itself must be seen to be reasonable.
The difference between real and personal rights
Personal rights are those rights that someone has regarding his/ her body, eg. body
protection and self-esteem and self respect while real rights refers to those rights that bind
all the citizens of the country, those rights will include no rape, no crime, no smoking in
public and etc.
The concept of legal personality and the difference between natural and
juristic persons
The concept of legal personality
 Legal personality (also artificial personality, juridical personality, and juristic personality) is the
characteristic of a non-human entity regarded by law to have the status of a person.
 A legal person (Latin persona ficta), also legal person, artificial person, juridical person, juristic
person, and body corporate) has rights, protections, privileges, responsibilities, and liabilities under
law, just as natural persons (humans) do. The concept of legal personality is perhaps one of the most

4
4PRINCIPLES OF LAW
fundamental legal fictions. It is pertinent to the philosophy of law, as well as corporations law (the law
of business associations).
 Legal personality allows one or more natural persons to act as a single entity (a composite person) for
legal purposes. In many jurisdictions, legal personality allows such composite to be considered under
law separately from its individual members or shareholders. They may sue and be sued, enter into
contracts, incur debt, and have ownership over property. Entities with legal personality may also be
subject to certain legal obligations, such as the payment of tax. An entity with legal personality may
shield its shareholders from personal liability.
 The concept of legal personality is not absolute. "Piercing the corporate veil" refers to a legal
decision in which the rights or duties of a corporation as the rights or liabilities of its shareholders or
directors. Legal persons may not have all the same rights as natural persons - for example, human
rights, including the right to freedom of speech.
 Although the concept of a legal person is more central to Western law in both common law and civil
law countries, it is also found in virtually every legal system.
Some examples of legal persons include:
 Cooperatives (co-ops), which are business organization owned and democratically operated by a group of
individuals for their mutual benefit, are legal persons.
 Corporations are by definition legal persons. A corporation sole is a corporation constituted by a single member,
such as The Crown in the Commonwealth realms. A corporation aggregate is a corporation constituted by more
than one member.
 Companies, a form of business association that carries on an industrial enterprise, are usually corporations,
although some companies may take forms other than a corporation, such as associations, partnership, unions,
joint stock companies, trusts, and funds. Limited liability companies are are unincorporated associations having
certain characteristics of both a corporation and a partnership or sole proprietorship. LLCs, like both
incorporated and unincorporated companies, are legal persons.
 Sovereign states are legal persons.
 Municipalities, as "creatures of statute" are legal persons. Other organizations or types of organizations may be
created by statute as legal persons,
 In the international legal system, various organizations possess legal personality. These include
intergovernmental organizations (the United Nations, the Council of Europe) and some other international
organizations (including the Sovereign Military Order of Malta, a religious order).
 Temples, in some legal systems, have separate legal personality.
Not all organizations have legal personality. For example, the board of directors of a
corporation, legislature, or governmental agency typically are not legal persons in that they
have no ability to exercise legal rights independent of the corporation or political body which
they are a part of.
The difference between natural and juristic persons
A "juristic person" is synonymous with a "juridical person", "legal person" or "artificial
person". Such persons are created, either by obtaining the express approval of the legislature
or by following special procedures for the creation of such persons. Juristic persons may also
be known as companies, corporations, incorporations, societies, associations or similar terms
depending on local legislation.
The term "natural person" is somewhat unusual, but would normally be interpreted as
meaning a person that is not created but who is born. A synonym would be "non juristic
person".
The purposes and functions of the law
PURPOSE OF LAW
1.Presevation of Order

5
5PRINCIPLES OF LAW
 The Law would not be required if all people were perfect. In providing the rules of conduct,
the Law stipulates what must be done and may not be done. This is in order that the
individual and collective rights of each member of the community may be protected. The
Law tries to prevent one person’s right clashing with each others rights or rights of an
individual from clashing with the rights of a community, thus preserving peace and order. If
every person did just as he wished, allowing his instincts and desires uninhibited, there could
be no society, no community and the Law of the judge would soon prevail.
2. Maintain Justice
 For our purpose of Law we will consider justice to mean fairness, in other words justice is
what appears to be right to a fair-minded person. Justice is not only the Law’s main object
but it is also its chief instrument in fulfilling the Law’s other main object of preserving peace
and order in the community. It is obvious that peace and order reign when the members of
the community obey the Laws.
3. Settlement of Disputes
 Enforcement – a breach of Law often invites punishment in the form of imprisonment, fine
or compensation. Associated with punishment are the mechanism to enforce these legal
forms i.e. police, courts and other institutions were set up to effect punishment and to
enforce the Law.
NB: these are collectively referred to as the Law Enforcement Machinery.
The sources of Law – legislation, judicial precedent, common law, etc.
Sources of law are the materials and processes out of which law is developed. In modern
nation states, the sources of law come either from the written law or the unwritten law .
Constitution, statutes, case law, and regulations issued by government agencies. Sources of
law for public international law and religious law differ, however, from the primary law of
individual countries. The natural law theory argues that some rules objectively existing in the
nature also are source of law, while legal positivism argues that only the rules made by
sovereignty can be the sources of law.
There are three main sources of law in the world. They are
1. legislation (it includes constitution and statutes which are prepared by Parliament)
2. case law or decisions of the higher court
3. customary law or custom
Sources of Zimbabwean Law
1. Legislation
 Legislation is law laid down by an organ of the State which has the power to do so. These laws are
embodied in writing and are known as statutes (or acts). In Zimbabwe, Parliament is the highest organ
that can pass legislation at the national level. There are also other bodies, that can pass subordinate
legislation. These include the provincial legislatures which pass provincial acts and municipal councils
which pass by laws. Legislation is a powerful source of law. In principle it binds the whole society.
2. Precedent / Case law / Court Decisions

6
6PRINCIPLES OF LAW
 Courts are institutions that apply the law on daily basis. Judges and magistrates, like all
lawyers consult legislation and rules of common law and custom applying to the particular
case before them. Courts also take into account their previous judgements in similar cases,
because they are bound to the approach followed in the past. Previous judicial decisions
therefore constitute law and the way in which the law was applied there is authoritative. The
reason for this lies in the system of judicial precedent, also called the doctrine of stare
decisis, which applies in Zimbabwe. The application of the doctrine of precedent depends,
among other things, on reported cases.
Various concepts / Doctrines in the Application of Case Law.
a). STARE DECISIS (Stare Decisis et non quieta movere)
 Case Law is built upon the precedent system or doctrine of “Stare decisis et quieta movere”
this term means “to stand by previous decision and not disturb settled points”. Once a court
has given a certain decision it and those courts which are subordinate to it must in future
give the same decision on the same point.
 The main reason for this doctrine is to achieve certainty in the Law. If judges were allowed
to create new principles on an “Ad hoc” basis or to arbitrarily change the Law as they
pleased, it follows that the Law would vary from day to day and from judge to judge.
 Consequently we could not go about our business in the certainty that what we were doing
was lawful or unlawful. There will be no equal treatment before the law - in other words, no
justice.
Application of Stare Decisis:
The Hierarchy of the Courts.
 The doctrine of stare decisis is also based on an understanding of the hierarchy of the courts.
In Zimbabwean Courts, the Supreme Court is the highest court of authority. It is not bound
to follow its own decisions. As a result it is possible for the Supreme Court to overrule
previous decisions as erroneous(wrong /mistaken). This is important for the development of the
Law.
 NB: the Law is not static, though the change ought not to be too sudden.
 Beneath the Supreme Court we have the High Court which is again a Superior Court of
Record, and its decisions are binding on all the lower Courts which in practice generally
means the Magistrates’ Courts in Zimbabwe. The decisions of the High Court are not
binding on itself unless the Court operates as a “Lower Court”. e.g. a three-judge court’s
judgment (i.e. three judges sitting) is binding on a two-judge Court e.t.c. However, where
one judge decides a matter s/he need not follow the decisions of another judge of the High
Court, although of course such decision will be highly persuasive.
 The Inferior Courts, meaning the Magistrates’ Courts and the primary Court, are not obliged
to follow the decisions of other Magistrates or presiding Officers as the case maybe.
b). RATIO DECIDENDI
 When in terms of the doctrine of “Stare Decisis” a court is obliged to follow the decisions of
the superior Courts, it is the reasons or principles for the decision (Ratio decidendi) that

7
7PRINCIPLES OF LAW
must be followed. Various approaches to selecting the ratio decidendi have been suggested
the ratio decidendi have been suggested by Jurists.
 NB: An approach to selecting the Ratio Decidendi from a case by Dr A.L. Good-hart 1930.
 Example: (Suppose) in a certain case the court finds that facts A, B and C exist. It then
excludes fact A as immaterial, and on facts B and C it reaches conclusion X. what is the ratio
decidendi of this case?.
 There are two principles:
i. In any future case in which facts are A, B and C, the Court must reach conclusion X, and;
ii. In any future case in which the facts are B and C the Court must reach conclusion X.
 In second case the absence of fact A does not affect the result, for fact A has been
held to be immaterial.
 The court, therefore, creates a principle when it determines which the materials are
and which are the immaterial facts on which it bases its decision.
 If in a future case further material facts in addition to B and C are found, conclusion
X will not necessarily be binding. The court may have to apply a new principle to
reach a conclusion and thus the judge may choose not to follow the former case.
 If the difference is so small as to be unimportant then the precedent case is
indistinguishable and must be applied but;
 If the difference between the two cases is so great that the Law laid in the precedent
case is not really relevant., then the precedent case is distinguishable and should not
be applied.
c). OBITER DICTA
 These are statements said in courts “by wayside” in the course of judgement and these are
therefore incidental to central issues of the case or in the course of a judgement. A judge
sometimes express his opinion upon a point of Law which is not necessary for the decision
for the decision of the case such an expression of opinion is termed an “Obiter Dictum”. It
is practiced especially as a result of custom since judge derived facts from custom.
 Such statements may be of persuasive authority in future cases. Thus in “Jajbhay Vs
Cassim” 1939 AD 537. Van Den Heever J.A. made the statement that in a case where two
estate agents had been employed and it was impossible to determine which of the two the
effective cuase of the sale was, both agents would be entitled to their full commission.
 This statement was made Obiter, or by the way, because it was not necessary for or
applicable to the decision in that case. However, this Obiter dictum was later accepted and
formed part of the Ratio Decidendi in the case of “ Petersen Vs Jajbhay” 1940 TPD 182.
Advantages:
 It is convenient in that, instead of examining principle of Laws anew each time a case is
brought before the court previous decision can be relied upon in applying principles of Law
to the facts.

8
8PRINCIPLES OF LAW
 There is certainty, equality, reliability and uniformity.
Disadvantages:
 Laws are usually outdated i.e. there is perpetuity of bad laws.
 No promulgation or notice of the new Laws to the public and to the parties, the Law is not
exposed.
 Judicial Law is not comprehensive since one judge decides only on a single point of Law
without debate and its implication may not have been considered.
 It is not binding in some future cases.
3. Customary Law
 Customary law is generally unwritten law. It is fixed practices in accordance with which
people live because they regard it as the law. Customary law therefore does not concern all
customs or practices, such as practices of polite behaviour. Old Germanic law also consisted
of customs. The same can be said of indigenous law. In modern law custom does not play
such an important role as a formative source of law. Any assertion of a custom as law has to
be proved.
CUSTOMS
 These are rules of conduct, habitually observed by individuals of a particular community.
 Or,
 May be defined as those habits, norms or instincts or usually practice of behaviour, inherited
by groups of people in a society or community.
 Customary Law is the oldest form of Law known to man. In primitive communities almost
the whole of the Law existed in the shape of customs. The people regulated their conduct
according to rules, which their ancestors had been accustomed to observe in the past. These
rules were not recorded but were binding in the course of ages through their observance
some of the customs were based on religious belief.
 Custom may mean a social custom or may mean a legal custom.
a). Social Custom.
 Are rules of contact habitually observed by individuals of a particular community. The social
customs therefore are persuasive and usually observed by those persons adhering to the
custom consent out of the need of social acceptance in the chosen community or group.
Punishment is done by the local section of the community hence presiding officers should
be accustomed with some of the Laws e.g. Kraal head, Headman, Chiefs etc.
b). Legal Custom.
 It involves state control and entails duties which must be observed where as social custom
entails practices. Punishment is done by the state in legal custom e.g. customary marriage.
Requirements for a custom to be legally binding.
1. Reasonable

9
9PRINCIPLES OF LAW
 The requisite of reasonable is very important and always scrutinized by the courts. Courts
can only hold a custom to be reasonable where the custom was design to prevent disputes
among persons engaged in certain activities .e.g. fishing: Case: Van Breda Vs Jacobs.
2. Certainty
 This stipulates that for a custom to be accepted it must be known. The persons to whom
the custom is claimed to have force of Law must known the existence of such a custom for
it to be accepted as binding.
3. Long establishment of custom
 The custom should have been practiced for a reasonable period of time. It is necessary that
the custom must have existed for a sufficient length of time to have it become generally
known.
4. Uniformity of observance
 Means that the custom must have been invaluably complied by the class of persons to whom
it applies and the custom should be obligatory and not optional.
5. Number of witnesses.
 A substantiated number of witness are necessary. A Roman-Dutch Jurist suggested that
these should be not less than Ten (10).
 NB: These principles were enunciated in this case:
CASE: Van Breda Vs Jacobs
FACTS:
 The case concerned a custom which prevailed amongst fisherman at False Bay in the Cape
Province, S.A. it had been a standing custom known as first come first pull amongst local
fisher man at the False Bay that once fisherman had set line or nets in a beach between the
Cape points where no boats were permanently stationed. Other fisherman were not entitled
to set their lines within a reasonable distance in order to poach an others’ fish.
HELD:
i. It was held by the court that this practice was “reasonable” in that it was designed to
prevent disputes amongst fisherman.
ii. It was held that the custom had been “Uniformly observed” amongst the fisherman
at the time.
iii. It was proved that the custom had “existed for some 45 years” and had been
generally observed by all the fishermen in this locality.
The court having established these facts recognized the custom as being legally binding.

10
10PRINCIPLES OF LAW
Another Example of Custom Law practiced in the Netherlands was:
The nucleus of these Custom Laws was influenced by Roman-Dutch Laws. And of these customs
were family relations, and business relations. The following Laws were to be observed:
i. No one should be enriched to the prejudice of another;
ii. No-one should improve his position by means of his own wrong.
iii. Relationship by blood confers rights in respect of a deceased persons’ property.
NB: Limits to changing of Customary Law:
 Customary Law can never contradict an Act of Parliament;
 It can never be contrary to natural justice.
 Custom still applies in primary courts. The significance of the customary law and
Primary Courts Act of 1981 is that for the first time in Zimbabwe, customary Law is
administered by a single hierarchy of courts, i.e. to say that ultimately customary
Law matters are appealable to the Supreme Court. Outdated Customs will be
relegated in time to the archives.
4. Common Law
 When a specific matter is not governed by legislation, common law usually applies. Zimbabwen
common law is mainly the 17th and 18th century Roman-Dutch law that was transplanted to the Cape.
This forms the basis of modern Zimbabwen law and has binding authority. Examples of common law
crimes include murder, robbery and rape, etc. Whilst Zimbabwen common law is mainly Roman-
Dutch law, not all the principles of Roman-Dutch law were transplanted to Zimbabwe. Sometimes
English law had, by means of precedent, influenced Zimbabwen common law. Some common law
principles are, for this reason, no longer pure Roman-Dutch law. The sources of Roman-Dutch law are
the old sources which are the following:
 Legislation (placaaten) - few of these still apply in Zimbabwe
 Judgements of the old Dutch courts
 Writings of learned authors (the so-called old authorities) such as Hugo de Groot, Voet, van Leeuwarm
and van der Linden.
5. Authoritative texts
 It has already been pointed out that the writings of the old authorities on common law have binding
force as a source of law. Many academics and other lawyers write books and articles in law journals.
There are useful sources in which to find legal principles. The authors explain the whole legal position
with respect to legislation, common law and case law. Legal practitioners, the courts and students
consult these writings on regular basis. Although these writings do not have binding authority, they can
sometimes have persuasive authority. A court may decide to follow the opinion of a particular author,
or to depart from a precedents which is at variance with such an opinion. In this way modern authors
can influence legal reform.
6. Indigenous Law (south Africa)
 Many black communities live according to indigenous law, which also takes on the form of written or
unwritten customary law. Indigenous law is applied in the ordinary courts. The Evidence Amendment
Act, (Act 45 of 1988) stipulates that a court can take judicial notice of indigenous law, provided that it
is not in conflict with the principles of public policy or natural justice. In some instances an expert will
have to give testimony on the content of these rules. The Black Administration Act, 1927 constitutes a
partial codification of the principles of indigenous law albeit in a distorted form. The Code of Zulu Law
is an example of codified African Customary Law. Case law on African Customary law is also applied.
 The big challenge facing democratic South Africa is to free indigenous law from the effects of colonial
and apartheid domination and to develop a legal system that reflects the true values of a new
democratic South Africa. The entire South African legal system and its sources must be re-examined

11
11PRINCIPLES OF LAW
critically. All law is being subjected to critical scrutiny to reflect the new constitutional order. The
central values of the South African Constitution mainly democracy, equality, dignity and freedom
require a fresh look at South African common law, indigenous law, and religious personal law so that
the new South African legal system will reflect the plural nature of the South African society and put
and end to South Africa's colonial and apartheid past in its legal system. The process of law reform has
begun but is bound to be a long process.
Detailed Notes Zimbabwe Context
1. The Legislature
 Laws made by parliament
 The most modern source of law
 Most important and quickest method of making new law, changing existing
law, amending or repealing or abrogating the law altogether.
Legislation refers to the law validly enacted by the legislative authority of Zimbabwe and assented to by the
President of Zimbabwe. In Zimbabwe the legislative authority of Zimbabwe vests in the President and
parliament of Zimbabwe which is the Primary Legislation states as follows:
The Legislature of Zimbabwe can confer powers on any authority to create binding laws. Currently the
Legislature of Zimbabwe is a bicameral system consisting of a Lower House (Parliament) and an upper House
(Senate). Legislation brought through parliament has to be scrutinized by the Senate before it goes for assent
to the executive President. The senate was recently ushered in through Constitutional Amendment Number 17
of 2005.
The method of passing legislation is entrenched in Section 511 of the Constitution. All legislation in
Zimbabwe is styled Acts of Parliament or Statutes. Other authorities such as the President, acting unilaterally,
and Ministries can pass legislation known as Statutory Instruments, or Subsidiary Legislation. Subsidiary or
Subordinate Legislation consists of the following:
 Regulations made by a Minister for purposes specified in the Enabling Act of Parliament.
 Bye-Laws created by specified local authorities such as Urban or Rural Councils, acting under powers
given to them by the relevant Acts of Parliament.
 Proclamations issued by the President for purposes such as dissolving Parliament.
 Rules of the superior Courts to facilitate procedure and their operations.
 Regulations made by the President under the Presidential Powers Temporary Measures Act.
2. Case Law / Precedent
Precedent refers to past decisions of the superior courts. Precedents establish the legal position of cases tried
in the courts and establish the reasoning for decisions made by the judges in each particular case. Conversely,
precedents therefore guide the courts in making future decisions in similar cases brought before them.
Zimbabwe relied on precedents of Zimbabwen origin or those of any jurisdiction in which English law and
Roman-Dutch law is applied and the precedents of Rhodesia.
The maxim Stare Decisi at non queta movere best sums up the use of case law in Zimbabwe. The maxim means to
stand by old decisions and not disturb settled points. Supreme Court decisions in Zimbabwe are binding on all
interior courts. High court ruling also binds the lower courts such as the Magistrates courts.
Stare decisis is the legal principle by which judges are obliged to respect the precedents established by prior decisions.
The words originate from the Latin phrase Stare decisis et non quieta movere: stand by decisions and do not disturb the
undisturbed. In a legal context, this is understood to mean that courts should generally abide by precedents and not disturb
settled matters.
Ratio decidendi is a Latin phrase meaning "the reason" or "the rationale for the decision." The ratio decidendi is "[t]he
point in a case which determines the judgment" or "the principle which the case establishes."
In other words, ratio decidendi - legal rule derived from, and consistent with, those parts of legal reasoning within a judgement
on which the outcome of the case depends.

12
12PRINCIPLES OF LAW
It is a legal phrase which refers to the legal, moral, political, and social principles used by a court to compose the rationale
of a particular judgment. Unlike obiter dicta, the ratio decidendi is, as a general rule, binding on courts of lower and later
jurisdiction—through the doctrine of stare decisis. Certain courts are able to overrule decisions of a court of co-ordinate
jurisdiction—however out of interests of judicial comity they generally try to follow co-ordinate rationes.
An obiter dictum is Latin for a statement "said by the way." Merriam-Webster Online Dictionary gives obiter dictum three
definitions:
 "literally, something said [dictum] in passing [obiter] . . ."
 "an incidental remark or observation"
 "an incidental and collateral opinion that is uttered by a judge but is not binding"
In the third meaning, an obiter dictum is a remark or observation made by a judge that, although included in the body of the
court's opinion, does not form a necessary part of the court's decision. In a court opinion, obiter dicta include, but are not
limited to, words "introduced by way of illustration, or analogy or argument." Unlike the rationes decidendi, obiter dicta are not
the subject of the judicial decision, even if they happen to be correct statements of law. Under the doctrine of stare decisis,
statements constituting obiter dicta are therefore not binding, although in some jurisdictions, such as England and Wales,
they can be strongly persuasive.
An example of an instance where a court opinion may include obiter dicta is where a court rules that it lacks jurisdiction to
hear a case or dismisses the case on a technicality. If the court in such a case offers opinions on the merits of the case, such
opinions may constitute obiter dicta. Less clear-cut instances of obiter dicta occur where a judge makes a side comment in an
opinion to provide context for other parts of the opinion, or makes a thorough exploration of a relevant area of law.
Another example would be where the judge, in explaining his ruling, provides a hypothetical set of facts and explains how
he or she believes the law would apply to those facts. ```
The advantage of Precedents
 Is that they ensure informality and consistency in the application of the law and they maintain
certainty and equality of the law in similar circumstances.
 The law becomes adaptable to changing circumstances.
 Adoption is easy, does not require formalities of debate over lengthy periods of time.
 Limits room for partiality.
Disadvantages
 It comes by chance when there is a court case in changed circumstances and so to the parties the law
comes after the event as there is no prior notice.
 It is no comprehensive; it only deals with the point in issue. It requires a number of related cases to
bring about a detailed body of law on any given aspect.
 It can not improve on the statute law as compared to legislation.
 It stifles the growth of the law by always looking back.
3. Customary Law
The customary law of Zimbabwe is generally unwritten. Customary law refers to the fixed customs and
practices of the tribes of Zimbabwe which were in practice since time immemorial. The customs must be
certain, reasonable and must had attained the recognition of formal law. For example the criminalization of
incest, in the sexual offences Act and the Criminal Law (Codification and Reform) Act is the recognition of
customary law which prohibits incest or sexual relationship with certain degrees of blood affinity.
The constitution entrenches the recognition of African Customary Law. Section 89 of the Constitution of
Zimbabwe in imposing the law to be administered, sets up African customary law as part of the law to be
administered. Other Legislation, such as the:
Customary Marriages Act
Administration of Deceased Estates Act.
Customary Law and Local Courts Act.
The acts also establish the application of Customary Law in certain respect.
The Customary Law of Zimbabwe is limited in scope in its application. It has no criminal Jurisdiction
whatsoever and it governs some areas of Marriage, Inheritance and Guardianship only.
4. Common Law
Common law of Zimbabwe refers to the unwritten law or non- statutory law. Common law excludes the
African customary Law. The common law of Zimbabwe is primarily the Roman-Dutch Law as applied at the
Cape of Good Hope on the 10th of June 1891 as per the provisions of Section 89 of the Constitution of

13
13PRINCIPLES OF LAW
Zimbabwe. The Common Law was transplanted from the Cape and imposed to Zimbabwe. However, the
common law at the Cape in 1891 had been heavily influenced by English Law, hence the common law of
Zimbabwe must be said to be Anglo-Roman-Dutch Law.
A recent development in Zimbabwe ousts the application of Common Law. The recent Codification of
Zimbabwe's Criminal Law through the Criminal Law (Codification and Reform) Act jeopardizes the
application of Common Criminal law Section 3 of the Act states unequivocally that Roman-Dutch Criminal
Law no longer to apply.
5. Authoritative Texts
One cannot safely assert that authoritative text from acclaimed legal authors form part of Zimbabwe's law.
However textbooks on law have persuasive authority upon which reliance can be had in making judicial
decisions. The few authoritative legal authors in Zimbabwe rely on old Roman Dutch writers. They mainly
write commentaries and guides to the law of Zimbabwe. Professor Geoff Feltoe has several Guides to the
Laws of Zimbabwe which are widely used and referred to in litigation. His comments and assertions form
persuasive grounds upon which cases can be decided.
Understanding of the structure, hierarchy and composition of the
Courts
1) SUPREME COURT
 A supreme court (also called a court of last resort, instance, or judgment; or a
high or highest court) is in some jurisdictions the highest judicial body within that
jurisdiction's court system, whose rulings are not subject to further review by
another court. The designations for such courts differ among jurisdictions. Courts
of last resort typically function primarily as appellate courts, hearing appeals from
the lower trial courts or intermediate-level appellate courts. Many countries in fact
have multiple "supreme courts," with each being the court of last resort for a
particular geographical region or on a particular area of law.
 It is the superior court of record and final court of appeal.
 It consists of the chief justice who is the head of the judiciary and judges of
the Supreme Court.
 It is not a court of first instance, except in constitutional matters.
 Also known as the court of appeal.
 It is a court of appeal from other courts unless the case is a constitutional
one.
 The court has unlimited jurisdiction in both criminal and civil cases.
 There shall be no appeal from any judgement or order of the Supreme
Court.
 This is the highest court in the country.
 Other courts are bound by the decision of the Supreme Court.
2) HIGH COURT
 Presided over by judges who are appointed according to the constitution of
Zimbabwe.
 The high court has full unlimited jurisdiction in both civil and criminal
cases.
 The court is also a court of appeal from the magistrate court.
 It has jurisdiction and authority to review all proceedings and decisions of
all inferior or courts below it.
 Appeal from the high court lie with the Supreme Court.
 This court can pass death penalty or life imprisonment.

14
14PRINCIPLES OF LAW
3) MAGISTRATES COURT e.g. regional, provincial, senior & ordinary
magistrates.
 Presided over by a magistrate.
 Magistrates are appointed by the Public Service Commission
 All magistrates’ courts have no jurisdiction to try criminal cases involving
the following; treason, murder or any offence where the person shall be
sentenced to death if convicted.
 They cannot dissolve civil marriages.
 It can impose corporal punishment on minors. The strokes shall not exceed
six.
 Regional magistrates has special jurisdiction as to punishment for rape,
public violence, arson, malicious injury to property or attempts to commit
these offences.
4) PRIMARY COURTS e.g. community court.
 Simple courts which are not very formal.
 Proceedings are not in written form.
 Legal practitioners cannot represent clients in these courts.
 The courts apply customary law only.
 They do not have jurisdiction in criminal cases.
 They cannot dissolve civil law marriages.
 Presided over by a presiding officer appointed by the minister.
5) SPECIALIST COURTS labour court, administrative court and small claims
court.
Detailed Notes Zimbabwean Context
The Supreme Court
Section 80 (1) of the Constitution provides for the creation of a Supreme Court "which shall be the superior court of
record and the final court of appeal for Zimbabwe". Subsection (2) and (3) provide that the Supreme Court shall
consist of: (a) the Chief Justice; (b) "such other judges of the Supreme Court, being not less than two, as the President may
deem necessary", and (c) any additional judge or judges appointed for a limited period by the Chief Justice, such
additional judges to be serving High Court or Supreme or former Supreme Court or high Court judges.
As has been noted above, the Supreme Court, in addition to appellate jurisdiction, exercises original jurisdiction
in cases where "any person alleges that the Declaration of Rights has been, is being or is likely to be contravened in relation to
him (or, in the case of a person who is detained, if any other person alleges such a contravention in relation to the detained person)"
that person may apply to the Supreme Court for redress. The Supreme Court therefore has a vital role to
perform in the enforcement of the Declaration of Rights contained in the Constitution.
Ordinary appeals are usually determined by a panel of at least three judges, one of who may not be an
additional judge, and occasionally by a panel of two judges. In constitutional matters, the Justice Minister or
the Chief Justice may direct that the case be heard by a panel of at least five judges, in which case only two
members of the panel may be additional judges. The Chief Justice may, in his discretion, appoint a larger panel
to hear any particular matter.
The High Court
Section 81 (1) of the Constitution provides for the creation of a High Court as a superior court of record.
Subsection (2) and (3) provide that the High Court shall consist of: (a) the Chief Justice; (b) the Judge President
of the High Court; and (c) "such other judges of the High Court as may from time to time be appointed". And (d) any

15
15PRINCIPLES OF LAW
Supreme Court Judge appointed as an acting High Court Judge by the Chief Justice after consultation with the
Judge President.
The Administrative Court
The Administrative court was established in 1979 by section 3 of the Administrative Court Act and has special
jurisdiction conferred on it by statute over particular matters but generally, the Court acts as a court of appeal
from a wide range of administrative tribunals.
The Administrative Court is "special" within the meaning of section 92 of the Constitution. Administrative
Court Judges, known as "Presidents", are appointed by the President after consultation with the judicial Service
Commission (section 92 (1)). The condition of service of an Administrative Court President may not be
amended during his term of office nor may his office be abolished without his consent (section 92(1)). By
virtue of the provision of section 79A (d) and79B, the judges of special courts such as the Administrative Court
are subject to the same constitutional safeguards as regards independence of a judiciary as Supreme Court and
High Court judges. However, the section 86(tenure) and 87 (removal) do not appear to apply to judges of
special courts such as the Administrative Court.
The jurisdiction of the Administrative Court includes original jurisdiction in relation to land acquisition cases
under the Land Acquisition Act and also appellate jurisdiction in matters relating to various publication laws
such as the Access to Information and Protection of Privacy Act.
Magistrates' Court
Magistrates' Courts are the courts of first instance in criminal matters and therefore occupy the important
position of deciding on bail land remand accused persons in most cases. The importance of this position is
thrown into relief when the large number of allegations of violence in police custody and the large number of
cases in which charges are not preferred or are eventually withdrawn are considered.
The System for the Administration of the Courts
The central figure in the administration of the Zimbabwe court system is the Registrar of the relevant court.
The court Registrar is responsible, inter alia, for fixing the amount of security to be lodged by an applicant
following the filing of an election petition. The Registrar had direction as to whether to allow access to court
records in the High Court and the Supreme Court. The Registrar is also the person administering the court roll
and who is therefore in control of assigning hearing dates for cases.
Messengers of the court and sheriffs are responsible for serving court process and enforcing court orders. It is
self-evident that without the service of process or the effective enforcement of court orders, much of the
purpose of litigation, both civil and criminal, is rendered otiose.
The distinction between civil and criminal processes
Criminal Cases
A criminal case, which is handled by local, state, or federal courts, involves an acting representative
of the government, generally a prosecutor, district, attorney, or grand jury, pressing charges against
individuals or entities suspected of committing crimes. Crimes, and hence criminal cases, can be
defined as those actions or disputes where a violation of public law occurs. For criminal cases, the
alleged crimes may have also afflicted victims in a manner that also warrants civil suits being filed,
which will allow victims to collect damages for their injuries and losses.
Civil Cases
Civil cases are initiated when a wronged party, the plaintiff, files a complaint with the court of
appropriate jurisdiction. The delivery of this complaint against named wrongdoers, known as
defendants, is the action known as filing a lawsuit or bringing suit. While civil cases may involve criminal
actions, these trials are completely separate from the proceedings of a criminal trial. Additionally,
civil cases cover the gamut of disputes, disagreements, and grievances a plaintiff feels cannot be
resolved sufficiently with defendants without court intervention.
Within the legal system, various types of civil cases may include:

16
16PRINCIPLES OF LAW
 Divorce
 Child support
 Child Custody
 Alimony
 Contractual disputes
 Personal injury tort claims
 Product liability
 Class action suits
 Wrongful death
 Medical malpractice
 Intellectual property disputes
 Libel, slander, and defamation of character
 Estate planning disputes
 Property and zoning disputes

In essence, any disagreement that is not in violation of criminal laws in a given jurisdiction is an
eligible civil case, as well as the damages stemming from some criminal cases.
In all civil cases, plaintiffs will be seeking remedy from a defendant or defendants. Remedy will often
come in the form of a court mandated judgment that attempts to rectify, through judicial ruling, the
outcome of a dispute. Additionally, remedy can be achieved in civil cases through settlement, which
may be provoked in light of the costs and potential losses stemming from an impending civil trial.
Remedies sought by plaintiffs in a civil case may take a number of forms including:
 Settlement
 Damages
 Injunction
 Declaratory judgment
CRIMINAL LAW CIVIL LAW
Regulates the conduct of individuals and the state. Regulates the conduct of individuals.
State is involved. The state is not involved.
The major aim is to rehabilitate the offender. The aim is to compensate the innocent party for
wrong done.
An act or the act prohibited must have happened.
There cannot be a crime unless the prohibited act has
happened.
An action may arise even before the wrong has been
done.
The wrong doer must have had the intention to
commit the offence.
An action arises even if the wrong doer had no
intention to prejudice or injure the other party
The act complained of must be unlawful. There is no need to establish that the act is unlawful.
Proof beyond reasonable doubt Proof is on a balance of probabilities
If convicted or found guilty a fine or punishment is
imposed and payable to the state.
If found liable, damages are payable to the wronged
party or person.
Prosecution is initiated by the state. Action is initiated by the wronged party.
Variable CRIMINAL CIVIL
1.Definition Composed of rules
formed/organized by the state
which prohibit certain acts on pain
of punishment.
Concerns private affairs as opposed to
state concerns
2.Initiators The state initiates the case. The plaintiff starts the case
3.Summons The member of the police issues it. Issued by the messenger of court
4.Costs Costs are met by the state Costs are met by the individual
5.Judgement Upon conviction, the offender may
be subjected to a fine,
imprisonment, whipping, and in
extreme cases death penalties.
Offender will be liable to a fine
The basic idea behind a civil action is to
compensate the individual who has been
wronged or to declare rights and
obligations.

rmmakaha@gmail.com
17
17 PRINCIPLES OF LAW
payable to the state and the injured
ends up in no financial gain.
6.standard of proof The onus of proving the crime rest
on the state and the standard
required is proof beyond
reasonable doubt.
Rest upon a balance of probabilities.
7.Prosecution The decision to prosecute a crime
lies with the state more particularly
with the state more particularly
with the A.G. certain requirements
must be met before a private
prosecution is initiated.
 A certificate (nolle
prosequei) declining to
prosecute must be
obtained from the A.G’s
Office.
 The person seeking the
action must show that
s/he has a direct interest
in the matter. The harm
caused amounting to a
crime must affect him/her
directly.
The plaintiff is the person bringing the
action. The plaintiff has a discretion to
bring action to court or to waiver his/her
rights.
8.Pleadings A docket is opened – to plead
guilty/ not guilty.
Only statements of claims are used by the
plaintiff and the defendant.
9.Parties involved Defendant Vs Complainant Plaintiff, Aggrieved, Wronged, Prejudiced
Vs Defendant.
10.Offence The act prohibited must have
happened. There cannot be a crime
unless the prohibited act has
happened.e.g.Murder, somebody
must have been killed.
An action may arise even before the
wrong has been done.e.g. one can seek an
interdict that the other party be
prevented from doing something.NB: the
innocent party has a duty to minimize his
loss.
11.Intention The wrong must have had
intention to commit the
offence.e.g.murder; there must be
intention to kill.
An action arises even if the wrongdoer
had no intention to prejudice or injure
another.
12.Unlawful acts The act complained of must be
unlawful.
There is no need to establish that the act
is unlawful.
13.Aim The major aim is to rehabilitate the
offender. He is punished for his
conduct. It also aims at deterring
the offender and other like-minded
persons.
The aim is to compensate the innocent
party for wrong done or to declare rights
and obligations.
(These topics carry weighting of 3% of the examination.)

rmmakaha@gmail.com
18
LAW OF CONTRACT
Definition of a contract
1. A contract is a lawful agreement between 2 or more
persons/parties/people within the limits of their contractual capacity,
with the serious intention of creating a legal obligation,
communicating such intentions without vagueness, each to the other
being of the same mind as to the subject matter, to perform positive
or negative acts which are possible of performance.
2. A contract is an agreement between two or more parties which, if it contains the
elements of a valid legal agreement, is enforceable by law or by binding arbitration. That is to
say, a contract is an exchange of promises with specific legal remedies for breach. These can
include Compensatory remedy, whereby the defaulting party is required to pay monies that
would otherwise have been exchanged were the contract honored, or an Equitable remedy
such as Specific Performance, in which the person who entered into the contract is required
to carry out the specific action they have reneged upon.
3. A contract is an agreement that can be enforceable by law. An agreement is an offer and its
acceptance. An agreement which can be enforceable by law must have some essential elements.
The essentials for a valid contract – to be studied in detail viz.:
1. The agreement must be lawful.
 The objective of the agreement must be lawful. Any act prohibited by law will not be
valid and such agreements cannot be treated as a valid contract. John rents out his
house for the business of prostitution or for making bomb, the acts performing there
are unlawful. Hence such agreement cannot be treated as a valid contract. Therefore the
consideration as well as the object of the agreement should be lawful.
CASES:
Ex turpi causa rule, ( "from a dishonorable cause an action does not arise") is a legal
doctrine which states that a claimant will be unable to pursue a cause of action, if it arises in
connection with his own illegal act. Particularly relevant in the law of contract, tort and
trusts, ex turpi causa is also known as the "illegality defence", since a defendant may plead that
even though, for instance, he broke a contract, conducted himself negligently or broke an
equitable duty, nevertheless a claimant by reason of her own illegality cannot sue.
 MURPHY VS TENGENDE, The issue was about dealing in foreign currency,
pounds and Zimbabwe dollars. It was held that the 2 had no license to deal in forex so
their transaction was unlawful
In pari delicto rule, “in equal fault (better is the condition of the possessor)" is a legal term
used to indicate that two persons or entities are equally at fault, whether the malfeasance in
question is a crime or tort.
The phrase is most commonly used by courts when relief is being denied to both parties in a
civil action because of wrongdoing by both parties. The phrase means, in essence, that since
both parties are equally at fault, the court will not involve itself in resolving one side's claim
over the other, and whoever possesses whatever is in dispute may continue to do so in the

rmmakaha@gmail.com
19
absence of a superior claim. The doctrine is similar to the defense of unclean hands, both of
which are equitable defenses. Comparative fault and contributory negligence are not the
same as in pari delicto, though all of these doctrines have similar policy rationales.
 DUBE VS KHUMALO, the 2 were involved in an adulterous affair, which was
rendered unlawful.
2. Contractual capacity,
 All majors or adults who do not suffer from any legal disability can enter into a contract. There
are certain categories of persons who have either capacity or cannot enter into a contract at all.
These are;
o Minors (kids)
o Insolvent persons
o Drunken persons
o Prodigals (Mitchell vs.
Mitchell & Others)
o Mentally ill persons
(Pheasant Vs Warne)
o Alien enemies
o Artificial persons
o Persons convicted of certain
crimes
 Parties entering into an agreement must be competent and capable of entering into a contract. If
"JOHN" agrees to sell a Government property to ANGIE and ANGIE agrees to buy that
property, it could not be treated as a valid agreement as JOHN is not authorized or owner of the
property.
 If any of the party is not competent or capable of entering into the agreement, that agreement
cannot be treated as a valid contract. According to the law of contract, every person is competent to
contract who is of the age of majority according to the law to which he is subject and who is of sound mind, and is
not disqualified from contracting by any law to which he is subject. So it is clear that the party must be of
sound mind and of age to enter into a valid agreement which can be treated as a valid contract.
CASES: involving Minors capacity
o EDELSTEIN VS EDELSTEIN
o DAMA VS BERA
o STATTAFORD VS OBERHOLZER
CONTRACTUAL CAPACITY
The agreement must be made within the limits of the parties’ contractual capacity.
While the General rule is that every person is able to contract freely within the limits of the law, the following are persons of limited
contractual capacity whose power to enter into binding agreements is subject to special rules:
1. Minors
2. Married women subject to the marital power of their husbands
3. Mentally ill persons
4. Drunk persons
5. Prodigals/Spendthrifts
6. Insolvent person
7. Alien enemies
8. Artificial Persons
9. Illegal Associations
In addition they may be subject to certain disqualifications under various statutes, just as persons who have been convicted of crime are.
1. MINORS
 A Minor is an unmarried person under the age of 18 years. He is under the custody and lawful authority of a guardian whose
duty it is to maintain the minor until he can maintain himself, administer property and assist him in contracting. The guardian is
normally a natural guardian, i.e. the father or the mother where the father is dead, a court has awarded the sole guardianship to
her, or the child is illegitimate, but may be appointed by a deceased natural guardian’s will or by the High Court (the upper
guardian of a child).
 NB: When a person marries before majority age he is tacitly emancipated/acquires majority status.

rmmakaha@gmail.com
20
 Contracts made by a minor are considered under two heads:
 a). Those made without the guardian’s assistance and;(unassisted contracts)
 b). Those made with the guardian’s assistance or made on the minor’s behalf by the guardian.(Assisted contracts)
 UNASSISTED CONTRACTS
 General Rule: a contract made by a minor without the guardian’s assistance is void as far as the minor is concerned and valid
as far as other party is concerned.
 The authority for this proposition is the Dutch Jurist, Voet, quoted in the case of Edelstein Vs Edelstein;
 “from the principles of the law it is clear that a minor who contracts without the assistance of his guardian can render others
under an obligation to himself, but does not himself become obliged to them….. [as] on the minor’s side a contract entered
into without the assistance of his guardian is ipso jure (by the law itself) null and void.”
 A minor who contracts without his guardian enjoys the best of both worlds. He binds the other party to him but does not bind
himself to the other party. The option of treating the contract as void or valid rests with the minor (or, more precisely, his
guardian who acts for him). If the minor elects to treat the contract as valid, he can compel the other party to perform; he will
then also have to fulfill his own part of the contract.
 If the minor prefers to treat the contract as void, the other party cannot compel him to perform his part of the bargain; a minor
who has already performed can recover from the other party whatever he has paid or delivered, but he may not keep what he
has received under the contract because this would unjustly enrich him at the other party’s expense. He must restore it, though
not necessarily in full.
 CASE: Edelstein Vs Edelstein
 FACT:
 A female minor whose parents were divorced ( the mother was awarded custody but the father remained the natural
guardian)entered into an ante nuptial contract with E. later in 1918, she and E were married with the implied consent of her
father, who was informed of the proposed marriage and did not object. In 1947 E died leaving over £100 000. and the wife,
considering the marriage to have been out of community of property because of the ante nuptial contract, accepted certain
benefits under E’s will. In 1949, when she consulted her legal advisers with a view to drawing up her own will, the validity of
the ante nuptial contract was questioned and she sought an order declaring the marriage in community of property. Of the
parties cited as respondents, only the Commissioner for Inland Revenue opposed the order to avoid losing £33 000. death
duties.
 HELD:
 The wife was bound by the ante nuptial contract on the ground that, while it had excluded community of property and profit
and loss, it had conferred benefits on her through promises in it of marriage settlements by E.
 HELD:
 A minor is not bound by an unassisted contract even one to his benefit. The minor may elect to hold the other party bound, in
which event the minor will also have to perform his obligations. But should the minor choose to escape the contract, he is
bound only to the extent of his enrichment. Furthermore, unlike an ordinary contract, an ante nuptial contract cannot be
ratified by a minor on attaining majority as this would amount to an impermissible alteration of the matrimonial property
regime. The wife was granted the order that the marriage was in community of property.
 A minor may acquire without his guardian’s assistance a perfectly valid obligation, which is sometimes not
contractual even though it arises in the course of attempting to contract, in the following circumstances:
 a). ENRICHMENT
 where a minor is unjustly enriched in terms of an unassisted contract, the contract remains void and he is not bound by it but
he is under an obligation to make restitution to the other party to the extent to which he has been enriched; he is not obligation
to restore whatever he has received pursuant to the contract, but only so much as still remains in his possession at the time of
the action or the surrogates of such residue.(Case: Edelstein Vs Edelstein).
 In other words, where necessaries are supplied to a minor, he incurs an obligation to pay their value property purchased with
money, or the proceeds of property, originally received must be yielded up; money spent on necessaries which would otherwise
have had to be paid for out of the minor’s estate has to be accounted for. He is not liable for depreciated or destruction of
property, or for money squandered or lost.
 CASE: Tanne Vs Foggitt
 FACTS:
 Foggitt a minor, without his guardian consent, entered into an agreement with T, the principal of a business college, to attend
typing classes for two weeks in May and the whole of April. He paid for the March lessons but then stopped attending and
refused to pay the April account.
 HELD:

rmmakaha@gmail.com
21
 Foggitt benefited from the contract only to the extent of the lessons actually received and those lessons having been paid for.
There was no further obligation on him.
 b). FRAUDULENT MISREPRESENTATION
 Where a minor fraudulently misrepresents his age or pretends he has been emancipated and so deceives another person, who is
induced to contract with the minor believing him to be of age and emancipated, the minor incurs an obligation. This obligation
is not contractual for the contract is void and the minor is not bound by it, but delictual because fraud is a delict and the minor
is bound to make good to the other party any loss he has suffered as a result of the fraud.
 Moreover, the minor is precluded from obtaining the remedy of restitution by which would otherwise be entitled to reclaim
whatever he has paid or delivered in pursuance of the agreement.
 c). TACIT EMENCIPATION
 Where a minor is tacitly emancipated, he can incur a binding contractual obligation within the field of his emancipation. Tacit
emancipation occurs when one is allowed by his guardian to carry on business or any other occupation on his own behalf but
the minor can contract to the extent to which he has been emancipated. i.e. the guardians consent has been given in advance.
 The test for determining whether the minor has been emancipated is whether the minor is economically independent and
whether his guardian allows him a measure of contractual freedom.
 A separate place to live and the carrying on of his own business may be indicative that his guardian has permitted him to enter
into contracts without assistance and that he has been emancipated but these factors are not conclusive evidence.
 It must be borne in mind that whilst emancipation can provide capacity to act, it is not a means of terminating minority. An
emancipated minor therefore still needs his guardian’s permission when he wants to get married.
 He also requires the consent of his guardian if he wishes to alienate or burden any fixed property belong to him, for such
transactions he may also require the consent of the courts.
 CASE: Dama Vs Bera
 FACTS:
 Bera an Indian girl nearly 16 old had been earning her living as a servant for some 4 to 5 years. She lived with her parents but
retained control of her income and paid a certain sum to them for board and lodging. The employer failed to pay the girl.
 HELD:
 Bera was tacitly emancipated and could sue Dama, her employer, for the wages due.
 d). RATIFICATION
 Where a minor contracts without his guardian’s consent the contract may be subsequently ratified by the minor on attaining
majority either expressly or by conduct/impliedly.
 CASE: Stuttaford and Company Vs Oberholzer
 FACTS:
 Oberholzer bought a motor cycle from Stuttaford on hire purchase while still a minor. After attaining his majority, shortly
afterwards he continued to use the motorcycle but when sued for the installments due he set up his minority at the time as a
defense to the action on the contract and tendered the return of the motor cycle and treats it as his own.
 HELD:
 Oberholzer had ratified the contract hence was bound by it.
 e). STATUTORY EXCEPTIONS
 A minor is entitled to contract on his own behalf under the following statutes:
 Insurance Act (Cap 196 ;s 37), provides a minor without his guardian’s consent can effect a life policy and pay the premiums
as they fall due but shall not cede or surrender the policy while he is a minor without guardians consent.
 Post Office Savings Bank Act (Cap 249;s 9), provides deposits made by or on behalf of a minor may be repaid to him after
he has attained the age of 7 years in every respect as if he were of full age.
 Building Societies Act (Cap 189;s 19), provides a minor over the age of 16 years can be a member or depositor with any
building society without his guardians’ consent and enjoy all the privileges and obligations attaching to the members or
depositors.
 ASSISTED CONTRACTS

rmmakaha@gmail.com
22
 A minor is bound by contracts made on his behalf by his guardian or made by himself with his guardian’s assistance given at
the time, beforehand or afterwards.
 CASE: Skead Vs Colonial Banking and Trust Company Ltd
 FACTS:
 Skead, a minor, with his guardian’s consent, signed a promissory note for £37 in payment of the first premium in a twenty-year
endowment assurance policy for £750. in favour of Skead, the note to become due eight days after he attained his majority. At
the time Skead contemplated marriage and the policy was considered the best means of his saving money.
 After the due date Skead was questioned by Colonial Bank, the holder of the note, and replied that he had no funds to pay it.
 HELD:
 Skead was liable because as the contract had been made with the consent of his guardian acting bonafide and reasonably as it
was not to his prejudice, he was liable to pay. Since he was going to benefit even if the guardian died, the assurance policy
doesn’t expire.
 NB: if the contract is to the minor’s prejudice, he may obtain an order setting it aside, in which case the guardian may be
personally liable.
 CASE: Wood Vs Davies
 FACTS:
 The father and natural guardian of Wood, a minor who had inherited a sum of money, bought on his son’s behalf a house then
worth £1550 for £1750, payable in installment until majority, installments were paid out of interest on the inheritance. On
Wood attaining majority a considerable sum still owed and the installments would absorb a large portion of the interest. Wood,
until majority, had lived in the house with his parents. On attaining majority Wood sued for cancellation of the sale and return
of installments paid with interest.
 HELD:
 There was serious and substantial prejudice to Wood, he was entitled to restitution and the contract should be cancelled. But
Davies the seller was to be given credit for a sum of money representing the value of the use of the house during the period in
which Wood lived in it with his parents.
 NB: The guardian’s consent may be express or tacit, or may be implied from the fact that the guardian with full knowledge of
the transaction raised no objection.
 NB: A guardian need not consent to the contract before it is made; it is sufficient if, knowing of the terms, he gives his consent
after the event and so ratifies the contract.
2. MARRIED WOMEN SUBJECT TO THE MARITAL POWER OF THEIR HUSBANDS.
 Married women subject to the marital power of their husbands have limited power to contract. The wife’s capacity is similar to
that of a minor under the guardianship of her husband. She ha no power to enter into any contract and bind herself, or her
husband, without the knowledge or consent of her husband, unless such contract is subsequently ratified by him. If she
purports to do so, the contract is void.
 People marry without an ante nuptial contract in which case the subject themselves to the common law regime of community
of property, community of profit and loss and marital power, or enter into an ante nuptial contract before their marriage
excluding these common law consequences.
 Variable consequences of:
 Marriage in Community (Civil Marriage) Chapter 5.11.
 (Without ante nuptial contract)
 Community of Property
 Property between spouses shall vest into a joint estate. This means that all their present and future property whether vested in
them at the time of or during marriage becomes the common or joint property of both spouses in equal undivided shares.
 Community of liabilities
 All the liabilities of either spouse whether incurred by them before or during the marriage becomes the joint liability of both
spouses. The property brought into the marriage by one party may consequently be sold to pay the premarital debt of the other.
 Community of Profit and Loss
 The legal effect is that all profits made by either party during the marriage fall into the community and all loses incurred by
either party must be shared by both. It follows that the spouses have no separate property.

rmmakaha@gmail.com
23
 Insolvency of the Joint Estate
 If the husband cannot pay the debts of the joint estate, the estate is in an insolvent condition. In this event, the joint estate may
be sequestrated by the creditor but the private estate of the wife cannot be sequestrated.e.g. Inherited things
 Marital Power of the Husband.
 Husband acquires what is known as the marital power consisting of the guardianship of his wife and the power of
administration. The husband shall not abuse the marital power.
 Marriage out of Community of Property (with ante nuptial Contract)
 It is made by the parties before the marriage and this means agreement before the marriage. Such a contract whether, in writing
or not it is always binding on the parties themselves after the marriage but it has no force or effect against any other person
unless it has been duly registered in the Deeds Registry.
 Customary Law Marriage.
 A woman married in terms of customary law Chapter 5. 07 Customary Marriage Act, is incompetent to enter into contract and
will need the assistance of the guardian or her husband. Marriages are in two forms.
 Customary Union (kutizira)
 Customary Marriage Act/African Marriage (this is done by any Magistrate)
 Customary Law marriage is common law and the General Rule is that the marriage creates community of property, community
of profit and Loss in a joint estate of which the husband has the sole right and power of administration and the wife has no say
in this administration. The common law can be varied by ante nuptial contract entered into before marriage and properly
executed and registered. The presumption of limited legal capacity to contract is waived if the women can show that she is
emancipated. A married woman may own property acquired by her own labour.e.g. Cattle, pots and utensils and this is not
subject to the husband’s control.
 The following circumstances are where the Joint Estate incurs an obligation through the act of the Wife:
 a). ENRICHMENT
 If the wife purports the contract and the joint estate is enriched, the husband in his capacity as administrator of the joint estate
will incur an obligation based on the law of unjust enrichment.
 CASE: Karsten Vs Forster
 FACTS:
 Forster sued Karsten, a woman married in community of property, for £50 which Karsten had agreed to pay Forster in
considering of his singing a certain option for the sale of a farm. Karsten pleaded that the contract was void because it was
signed by her when she was married in community of property and the husband had not consented.
 HELD:
 Karsten and her husband had been enriched by the sale of the farm, which would not have taken place if Forster had not been
induced to sign the option and the husband was bound by the contract.
 b).NECESSARIES
 (Include food, clothing, medical and dental expenses and other business connected with the household)
 The General Rule is that; All wives, whether married in or out of community of property, are entitled to make contracts for
household necessaries without reference to their husbands.
 Where the marriage is in community of property, the Joint Estate is bound and only the husband in his capacity as its
administrator may e sued during marriage. If the marriage is dissolved before the debt is paid, the trader can sue the husband
for the whole debt or the wife for half, a husband who pays the whole debt will recover half from his ex-wife.
 Where the marriage is out of community, husband and wife are jointly and severally liable to the trader, which means he can sue
either husband or wife for the whole amount. If he collect payment from the husband, that is the end of the matter. When he
chooses to sue the wife, or if she pays voluntarily, the wife has a right of recourse against the husband for his pro-rata of the
debt, determined according to the relative means of the spouses.
 When the parties are living together, even a notification to the supplier that the husband has withdrawn his wife’s right to
pledge his credit has no legal effect
 It is no defense to a supplier’s claim for the husband to his wife had no need to buy on credit.

rmmakaha@gmail.com
24
 CASE: Clark & Co Vs Lynch
 FACTS:
 Clark sued Lynch for R122.in respect of necessaries of life and household necessaries supplied to his wife.
 HELD:
 The wife has power to bind the husband in respect of all those matters reasonably incidental to that organized family
establishment, whether the articles furnished are consumed or used by the husband or the wife or children or their servants or
anyone else who is living with them either permanently or temporarily as part of the joint establishment of the marriage
partners.
 A notification to a supplier that the husband has withdrawn his wife’s right to pledge his credit has no legal effect so long as the
wife and husband continue to live in, or during any period when they subsequently re-establish, a common household.
 The husband in an action for an amount owed in respect of necessaries supplied to his wife cannot rely on the fact that his wife
has been provided with sufficient funds to make it unnecessary for her to buy on credit.
 Where a wife abuses her rights her husband can terminate her authority to pledge his credit by obtaining an interdict from the
court.
 CASE: Traub Vs Traub
 FACTS:
 A wife was not short of any reasonable necessity or luxury but was incurring debts which amounted to gross extravagance and
prodigality.
 HELD:
 The husband should be granted an interdict restraining his wife from binding his credit.
 If the wife is living apart from her husband owing to his fault she can bind his credit, but not where the common household is
broken up by the wife’s conduct.
 CASE: Gammon Vs McClure
 FACTS:
 G met his wife on the way out to settle in South Africa and married her soon after arrival. Not long after settling in
Grahamstown he grew tired of her and forced her to return to Cape Town where she bought necessaries.
 HELD:
 A husband is bound to support his wife who left him owing to his misconduct and is liable to pay for necessaries supplied to
her.
 NB: A husband is not liable for necessary services rendered to his wife after she has unlawfully deserted her husband and is
living apart from him.
 If, after the common household has broken up, the husband adequately provides for his wife and notifies a supplier that he is
doing so and will not pay for necessaries supplied to her, the supplier cannot sue the husband for the cost of necessaries
supplied after receipt of the notice.
 If, although the marriage has actually been dissolved, the husband comport himself as if the marriage still exists, he will
continue to be liable.
 CASE: Thompson Vs Model Steam Laundry Ltd.
 FACTS:
 After divorce, T hired a house in which he, his children and his former wife, in the capacity of manageress of the household,
lived , to outward appearance as a married couple with children. The former wife pledged his credit for laundry work.
 HELD:
 T was liable on implied agency, namely authorization of his former wife to pledge his credit for household necessaries.
 Whether articles bought by a wife are necessaries or not is for the court to decide and in deciding t has regarded to the social
standing and means of the parties and their habits of life in the past.

rmmakaha@gmail.com
25
 C).PUBLIC TRADER
 A public trade is one in which the wife indicates to the public, expressly or impliedly, that she is open to do business with any
person, whatever the business or profession carried on.
 A married woman openly carrying on any retail or wholesale trade may validly contract in all matters connected with such trade
and may consequently bind herself and her husband and sell and burden the stock of the business. (Grotius 1.5.23)
 Wessels J said: “It appears to e an established law that where a woman married in community of property carries on business as
a public trader she is deemed to be acting as her husband’s agent in every transaction entered into by her in connection with
that business. It is equally clear that the assets and liabilities of the business do not fall outside the joint estate of the parties so
as to form part of a separate estate.”
 The husband’s consent to the trading may be withdrawn y him or terminated by his insanity.
 D). AUTHORITY OF THE COURT
 Where a husband is absent from the country, or unreasonably withholds his consent to his wife’s contracts, the court may
authorize her to contract, either specially or generally.
 E). STATUTORY EXCEPTIONS
 A woman married in community of property can contract under the following statutes.
 Insurance Act (Chp 196; s 39) provides that a married woman may effect and own a life policy, hold acquire and dispose of any
interest in a life policy, hold and dispose of any moneys, or any asset acquired with those moneys, accruing from any interest in
a life policy, in all respects as if she were a single woman of full age and capacity.
 Post Office Savings Bank Act (Chp 249; s 10) provides a married woman, whether under marital power or not, may be a
depositor and with or without assistance execute all necessary documents, give all necessary aquittances and enjoy all the
privileges and be liable to all the obligations attaching to depositors.
 Building Society Act (Chp 189;s 19) provides that a married woman whether under marital power or not, may be a member of
or deposit with any building society, and may, without her husband’s consent or assistance, execute all necessary documents
and generally have all the privileges and obligations attaching to members or depositors.
3. MENTALLY ILL PERSONS
 A contract made by a mentally ill person is Void if at the time of the agreement he could not understand and appreciate the
transaction into which he entered or if his consent was motivated or influenced by an insane delusion caused by mental disease.
 CASE: Lange Vs Lange
 FACTS:
 At the time of his marriage L understood the nature of the contract and appreciated the nature of the obligations he was
undertaking, but he was already suffering from a mental disease and his volition in entering into the marriage was influenced by
auditory hallucinations caused by the disease.
 HELD:
 The marriage should be declared null and void ab intio ( from the beginning).
 NB: it is not necessary to prove that a person, owing to mental disease, did not understand or appreciate the nature of the
contract; proof that his consent was motivated or influenced by an insane delusion caused by mental disease is sufficient.
 Whether or not a mentally ill person could understand and appreciate the transaction is a matter of fact in which the court will
consider all the relevant evidence.
 A mentally ill person may incur an obligation on the grounds of enrichment.
 Where a person has been declared mentally disordered or defective under the Mental Health Act (Act 23 of 1976), the order
operates while in force so as to create a rebuttable presumption that he is mentally ill and any contract made by him will be void
unless it be proved that at the time he was in full possession of his faculties or his state of mind was such that he was able to
understand the nature of the contract and appreciate properly the duties and responsibilities created by it.
 CASE: Prinsloo’s Curators Vs Crafford and Prinsloo
 FACTS:
 P, who had been declared of unsound mind by order of court, married C in community. At the date of the marriage the order
was still in force but P was as a fact of sound mind and entered into the contract voluntarily and fully understanding its
significance.
 HELD:

rmmakaha@gmail.com
26
 The marriage was Valid.
4. DRUNK PERSONS
 Where a person enters into a contract while so drunk that he does not know he is entering into a contract or has no idea of the
terms, the contract is void but not if the drunk person is merely more easily persuadable or more willing to conclude the
contract.
 Intoxicated Persons.
 Intoxicated, acute or chronic, which makes a party unaware that he is contracting or unable to appreciate the nature of the
contract, renders the contract void. Intoxication of a lesser degree will be of significance only if induced by the other party to
the contract in order to gain an unfair advantage, in which case restitution will be granted.
 NB: A drunk person can incur an obligation on the ground of enrichment.
5. PRODIGALS.
 A prodigal, who is a person declared by the court to be incapable of managing his affairs as a result of a propensity to squander
his assets, cannot contract with regard to his property and if he does so the contract is void, but apart from his property he is
entitled to contract freely.
 A person who is recklessly frittering away his estate may, at the instance of a relative or other interested person, be interdicted
from contracting without the assistance of a curator appointed by the court.
 CASE: Cillie Vs Cillie
 FACTS:
 A wife alleged that her husband to whim she had been previously married but from whom she was now divorced, was
squandering his assets and was almost continually under the influence of liquor.
 HELD:
 An order should be granted declaring C a prodigal, interdicting him from dealing with his property and appointing a curator
bonis to his property.
 CASE: Mitchell Vs Mitchell & Others
 FACTS:
 M had been declared incapable of managing his affairs and curator bonis had been appointed by the court. Thereafter M
without the curators’ consent married.
 HELD:
 A curator bonis deals with the estate of a person under curatorship and not with his person. In his personal relationship to
others not affecting his estate the curator has no right to interfere. If he chooses to marry, the curator cannot interfere except in
so far as it relates to his property. Where a person under curatorship has not been declared a lunatic, the curator has no locus
stand to upset his marriage merely because marriage entails maintenance.
 If a prodigal contracts without his curator’s consent the contract may be subsequently ratified by the curator.
6. INSOLVENT PERSONS.
 Insolvency is the condition of a person when his financial position reaches the stage that he is unable to pay his debts or his
liabilities exceed his assets. In such an event the condition of the debtor may be officially recognized by the law for the
protection not only of his creditors, but also of other persons. The Insolvency Act (Chp 303) provides that the court may, at
the instance of the debtor himself or of his creditors, grant an order sequestrating the estate of the debtor.
 The effect of a sequestration order is that the debtor becomes statutorily insolvent and all his property is placed under the
control of a trustee who realizes it and distributes the proceeds among the various creditors in accordance with the Insolvency
Act. The Insolvent becomes subject to legal disabilities and these continue until his estate has been finally distributed and he
has been rehabilitated.
The following restrictions are placed on the Insolvent’s freedom of contract:
a). An Insolvent may not contract in such a way as to purport to dispose of any property of his insolvent estate (s 37 (2) (a) of the
Insolvency Act)
b). He may not without the written consent of his trustee enter into any contract whereby his estate is likely to be adversely affected. (s 37
(2) (b) ).

rmmakaha@gmail.com
27
c). He may not without the written consent of his trustee have any interest in, or be employed in, the business of a trader who is a general
dealer or a manufacturer. (s37(3))
 If the Insolvent contracts in breach of these provisions, the contract is not void but remains valid until set aside by the trustee.
 Also, where an insolvent without his trustee’s consent alienates property acquired after sequestration to a person who was not
aware and had no reason to suspect that the estate was sequestrated, the alienation shall be valid. (s 40(1)
7. ALIEN ENEMIES
 An Alien enemy is a person residing or carrying on business in enemy territory and any contract made with him in times of war
is void as public policy requires that the state should not be hampered in its prosecution of the war nor the enemy in any way
assisted.
 Where an enemy subject resides in Zimbabwe, he has full contractual capacity and any contract made with him is valid unless
bad as against public policy. His internment appears to make no difference unless performance becomes impossible as a result
of supervening impossibility of Performance.
8. ARTIFICIAL PERSONS
 In principle an artificial person’s contractual capacity is determined by its constitution. If it is created by special statute (Cold
Storage Commission or Air Zimbabwe), reference must be made to that statute; if by Royal Charter (British South African
Company) to that Charter. If it is a company registered under the Companies Act (Chp 190), its contractual capacity is
determined by the objects clause of its memorandum of association, either expressly there conferred or such as may fairly be
regarded as incidental to , or consequential upon, the specified objects.
 If an artificial person enters into a contract which it has no contractual capacity to make, the contract is void and cannot be
ratified.
 NB: Re Jon Beauforte (London) ltd. A company, which was authorized by its memorandum to carry on business of
costumiers and gown-makers, embarked on the business of making veneered panels and erected a factory for this purpose. The
company later went into liquidation. Three creditors, a firm of builders who constructed the factory, a firm who supplied
veneer, and a firm who supplied coke, all proved in the liquidation. The liquidator rejected their claims.
 HELD:
 Their claims were rightly rejected on the ground that the contractors were ultra vires (beyond the company’s powers).
 NB: Rules of unjust enrichment should apply to the rights of the parties in any ultra vires transaction.
9. ILLEGAL ASSOCIATIONS
 An illegal association has no locus standi in judicio (right to appear and be heard) and any contract made by it is void and
unenforceable.
 But under the doctrine of unjust enrichment a remedy lies against its members who have derived benefits at the expense of
others to which they were not entitled and any person trading with an illegal association or with its members has a liability to
pay for benefits received by him.
3. Intention to contract,
 The parties entering into a contract must have an intention to create a legal relationship.
If there is no intention to create a legal relationship, that agreement cannot be treated as a
valid contract. Generally there is no intention to create a legal relationship in social and
domestic agreements. Invitation for lunch does not create a legal relationship. Certain
agreements and obligation between father and daughter, mother and son and husband and
wife does not create a legal relationship. An agreement wherein it is clearly mentioned that
"This agreement is not intended to create formal or legal agreement and shall not be subject
to legal jurisdiction in the law of courts." cannot be treated as a contract and not valid.
CASES:
 BLOOM VS AMERICAN SWISS WATCH COMPANY 1955

rmmakaha@gmail.com
28
 WATERMEYER VS MURRAY (counter offer), one party offered to sell a farm to the other
party on certain terms, the other party did not accept unconditionally but countered the offer
setting his own terms of the offer. The original offeror decided not to offer his farm.
 CARLILL VS CARBOLIC SMOKEBALL COMPANY
o One of the most famous cases on forming a contract is Carlill v. Carbolic Smoke Ball Company,
decided in nineteenth century England. A medical firm advertised that its new wonder drug,
the smokeball, would cure people's flu, and if it did not, buyers would receive £100. A
significant number of people sued for their £100 when the product did not work. Fearing
bankruptcy, Carbolic argued the advertisement was not to be taken as a serious, legally
binding offer. It was merely an invitation to treat, or mere "puff," a gimmick; however, the
court of appeal held that to a reasonable man, Carbolic had made a serious offer. People had
given good "consideration" for it by going to the "distinct inconvenience" of using a faulty
product. "Read the advertisement how you will, and twist it about as you will," said Lord
Justice Lindley, "here is a distinct promise expressed in language which is perfectly
unmistakable."
 CRAWLEY VS REX
 KILBURN VS ESTATE KILBURN, the promise made by the husband was not a serious one
that the husband had no intention of paying his wife the sum. The intention of the husband was
that the wife should claim the sum if and when the husband went insolvent. It was held that there
was no obligation and the wife could not claim the bond.
4. Agreement to be communicated and not vague,
 Wording of the agreement must be clear and not uncertain or vague. Suppose John agrees to
sell 500 tones of oil to Mathew. But, what kind of oil is not mentioned clearly. So on the
ground of uncertainty, this agreement stands void. If the meaning of the agreement can be
made certain by the circumstances, it could be treated as a valid contract. For example, if
John and Mathew are sole trader of coconut oil, the meaning of the agreement can be made
certain by the circumstance and in that case, the agreement can be treated as a valid contract.
According to the law of contract, Agreements, the meaning of which is not certain or capable of being
made certain, are void.
CASES:
 CANTOR VS CANTOR
 Husband promised wife that he will give her “something”, “sometime”.
 LEVESTEIN VS LEVESTEIN, courts can give meaning on the contract from evidence
before it.
5. Parties must be of the same mind (consensus ad idem)
 The parties to the contract have a mutual understanding of what the contract
covers. For example, in a contract for the sale of a "mustang", the buyer thinks
he will obtain a car and the seller believes he is contracting to sell a horse, there is
no meeting of the minds and the contract will likely be held unenforceable.
CASES:
 MARITZ VS PLATLEY, auction - marble metal piece on which stood a
mirror, the auctioneer put it up and it was sold to Platley, when the auctioneer
later put up the mirror, Platley protested claiming that he had bought the metal
piece and the mirror.
 GEORGE VS FAIRMCARD HOTEL, courts will not assist a foolish mistake
due to carelessness.

rmmakaha@gmail.com
29
 BHIKAGEE VS SOUTHERN AVIATION, even though he did not
understand the language the party entered into a contract.
6. The contract must be possible to perform.
 If the act is impossible of performance, physically or legally, the agreement cannot be
enforced by law. There must be possibility of performance of the agreement. Impossible
agreements like one claims to run at a speed of 1000km/hour or Jump to a height of 100feet
etc. would not create a valid agreement. All such acts which are impossible of performance
would not create a valid contract and cannot treated as a valid contract. In essence, there
must be possibility of performance must be there to create a valid contract.
CASE:
 PETERS & FLAMMAN VS KOKSTAD MUNICIPAL COMPANY
o Before Peters & Flamman had completed to light the streets as per contract, World War
broke out. The 2 were Germany nationals imprisoned as alien enemies as a result were
not able to perform part of their obligation. The court ruled that as a result of
imprisonment, it had rendered their performance impossible and consequently there was
no breach of contract. It was a case of termination of contract due to supervening
impossibility.
OTHER ESSENTIALS FOR A CONTRACT TO BE VALID
1. Agreement not expressly declared void: For example Restraint of marriage. If John promises to pay
$50 to Mary if she does not marry throughout her life and Mary promise not to marry at all. But this
agreement cannot be treated as a valid contract owing to the fact that, restraint of marriage expressly
declared void. Some of the agreement which have been expressly declared void are agreement in restraint of
legal proceedings, agreement in restraint of trade, agreement in restraint of marriage and agreement by way of wager.
2. Proper offer and it s acceptance: To create a valid contract, there must be two or more parties. One
who makes the offer and the other who accepts the offer. One person cannot make an offer and accept it.
There must be at least two persons. Also the offer must be clear and properly communicated to the other
party. Similarly acceptance must be communicated to the other party and the proper and unconditional
acceptance must be communicated to the offerer. Proper offer and proper acceptance should be there to
treat the agreement as a contract which is enforceable by law.
The contract involves an offer (or more than one offer) to another party, who accepts the offer. For
example, in a contract for the sale of a piano, the seller may offer the piano to the buyer for
$1,000.00. The buyer's acceptance of that offer is a necessary part of creating a binding contract for
the sale of the piano.
Please note that a counter-offer is not an acceptance, and will typically be treated as a
rejection of the offer. For example, if the buyer counter-offers to purchase the piano for $800.00,
that typically counts as a rejection of the original offer for sale. If the seller accepts the counter-offer,
a contract may be completed. However, if the seller rejects the counter-offer, the buyer will not
ordinarily be entitled to enforce the prior $1,000.00 price if the seller decides either to raise the price
or to sell the piano to somebody else.
3. Free Consent: , consent is said to be free when it is not caused by (i) coercion, (ii) undue influence (iii) fraud, (iv)
misrepresentation, or (v) mistake. If the contract made by any of the above four reason, at the option of the
aggrieved party it could be treated as a void contract. If the agreement induced by mutual mistake the
agreement would stand void or canceled. An agreement can be treated as a valid contract when the

Ari Pregen - Law Contracts

Recommended

Recommended

More Related Content

What's hot

What's hot (20)

Similar to Ari Pregen - Law Contracts

Similar to Ari Pregen - Law Contracts (20)

More from Ari Pregen

More from Ari Pregen (18)

Recently uploaded

Recently uploaded (20)

Ari Pregen - Law Contracts