INTRODUCTIO
N TO THE
LAW OF
CONTRACT
2022
Dr Innocent Maja/ Walter
Makhuyana
What is a contract?
A contract is a legally enforceable agreement.
Legal requirements
Offer and acceptance
Consensus ad idem.
Animus contrahendi
Contractual capacity
Possibility to perform
Clarity
Formalities
Legality
BASIC CONCEPTS
Concept of obligations – contracts should create
legally binding obligations. Debtor – a party with a
duty to render performance. Creditor – a party with a
right to receive performance. Unilateral, bilateral and
reciprocal (exchanged) performance
Concept of terms, Essential terms – they identify the
type of a contract. Legal terms – prescribed by law.
Residual terms – special provisions eg voetstoots
clauses.
Concept of Performance – a party has to perform.
Dare (give), facere (do) and non-facere (refrain from
doing) something
Theories of contractual
liability
They explain why contracts should be binding.
Declaratory theory – contracts declare the
intentions of the parties e.g caveat
subscriptor, sanctity of contract
Will or consensual theory – contracts express
the free will of parties e.g consensus ad idem
Reliance theory – contracts creates an
impression that parties had reached
consensus and the other party reasonably
relied on this impression- quasi-mutual assent
Doctrines
Foundational principles
Freedom of contract – a person is free to enter into
a contract without governmental interference or
restriction. Exceptions include legality,
monopolies, standard form contracts
Sanctity of contract – a contract is sacrosanct eg
caveat subscriptor. Exceptio – severability
Privity of contract – contractual remedies are
enforceable by and against parties to a contract.
Exceptions include undisclosed principal, trusts,
stipulation alteri (contracts made for the benefit
of third parties), statutory exceptions
Sources of law of contract
1. Statute
This refers to pieces of legislation
passed by Parliament and any
subsidiary enactments authorised by
Parliament
These include the Constitution, Acts
of Parliament and by laws.
Statutes are a supreme source of the
law and override all other sources of
law that are inconsistent with
statutes
2. Common law
Refers to the law that applied at the
Cape of Good Hope on 10 June 1891 as
modified by statute (section 192 of
the 2013 Constitution as read with
section 89 of the Lancaster House
Constitution).
Roman Dutch Law with English
elements
It usually finds expression in court
decisions.
Our lectures will refer to case law
extensively (Zimbabwean, South
3. Custom
Certain, reasonable, clear and uniformly
observed rules.
It comes in two forms namely (a) African
customary law (that has limited
application in Commercial law) and (b)
trade usage (in the case of commercial
law, this refers to the law of merchants).
Examples include the trade usage for
bankers to charge interest on overdrafts.
The custom should be long established,
universal, uniformly observed, well
known, reasonable, certain and
consistent with general principles of
contract.
4. Authoritative texts
Writings by leading authorities in the
field of law
They include treatises written by Roman
Dutch jurists and modern textbooks &
scholarly articles.
They can be used as persuasive
authority. L Madhuku (in An Introduction
to Zimbabwean Law) argues that ‘The
persuasive nature of an opinion of an
author depends, inter alia, on the
standing of the author in the field of law
in question, the reputation of the author
among judges, the scholarly level of the
piece of work involved and the degree to
