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Law of Contract For Acbm
Law of Contract For Acbm
INTRODUCTION.
TYPES OF CONTRACTS:
Contracts may be classified into:
-Written (Specialty Contracts)
- Contracts requiring written evidence
- Simple contracts.
Written Contracts.
These are contracts which the law insists must be written.
The must be embodied in a formal document e.g.
- Under Sec. 6(2) of the Hire Purchase Act; Cap 507, a hire purchase
agreement must be written.
- Under Sec. 2(1) of Marine Insurance Act, a contract of Marine
Insurance must be written.
- Contracts of sale of land are equally required to be written.
Such
-
Simple Contracts.
These are contracts whose formation is not subject to any legal formalities.
The contract may be oral, written or implied from the conduct of the parties
e.g.
- Contract of sale of goods
- Partnership agreements etc.
Under Section 2(1) of the Law of Contract Act, Cap. 21 Laws of Kenya, the
sources of the law in Kenya are:
- Substance of Common law
- Doctrines of Equity
- Other statutes.
ELEMENTS OF A CONTRACT.
All agreements are contract when made out of free consent of parties
competent to contract, with lawful consideration, lawful object and which are
not thereby declared void.
The following are elements of a contract.
I.
Offer
II.
Acceptance
III. Intention to create a legal relationship.
IV.
Lawful consideration.
V.
Capacity to contract.
VI.
Free consent.
VII. Lawful object.
VIII. Legal formalities.
IX.
Possibility of performance.
X.
Not expressly declared void.
OFFER
A contact comes into existence when a definite offer has been unconditionally
accepted.
Mode: The offer can be made orally, in writing, or impliedly provided that the
mode of offer or acceptance is in tandem with any statutory requirements as to
form e.g. Contract for sale of Land need to be in writing.
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Illustration:
In Carlill Vs. Carbolic Smoke Ball Co. Ltd, the defendant company manufactured
and owned a drug named the carbolic smoke ball. The company was confident
that it was the best cure for fever, influenza, and colds and other diseases
associate with taking cold water. It put an advertisement in a newspaper to the
effect that a $ 1,000/- reward was available to any person who contracted
influenza, fever, cold or other diseases after taking the carbolic smoke ball as
prescribed.
The advertisement stated further that the company had deposited $ 1,000/with Alliance Bank. Mrs. Carlill who had read the advertisement bought and took
the smoke balls as prescribed but contracted influenza. The company denied
paying her and she sued. The company argued that:
- The advertisement was mere sales talk.
- There was no intention to create legal relations with any person.
- The company couldnt make and offer to the whole world.
However, it was held that though the advertisement was unclear in certain
respects, it amounted to a general offer and any person who fulfilled its
conditions contracted with the company hence Mrs. Carlill was entitled to the $
1,000/-
SPECIES OF OFFER:
Following are other manner in which offer exists.
CROSS OFFER.
Occasionally two parties make similar offer to each other without knowing that
same offer has been made by the other party. In such a case no binding
contract will have been created since none has specified has acceptance to
another.
COUNTER OFFER.
This is a change, variation or modification of the terms of the offer by the
offeree. It is a conditional acceptance and therefore not an acceptance in law.
It is an offer in its own right and if accepted, an agreement arises between the
parties.
The legal effect of making a counter-offer is that it terminates the original
offer which thereby becomes incapable of acceptance unless revived.
In Hyde Vs. Wrench (1840) on June 8th 1840 the defendant made a written
offer to sell to the plaintiff a firm for $1,000/-. On June 15th the plaintiff
wrote back accepting to pay $ 950 for the firm. On June 27th the defendant
wrote to the plaintiff rejecting the $ 950.
On June 29th the plaintiff wrote to the defendant accepting to pay $ 1,000/for the firm. The defendant refused and the plaintiff sued for specific
performance. It was held that there was no acceptance as a counter offer does
not amount to acceptance neither was the offer revived in this case.
A counter offer differs from a request for information or an inquiry.
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An inquiry does not change the terms of the offer and the offeree is free to
accept the offer before or after the inquiry is responded to.
TENDER.
A continuous offer is called a standing offer or a tender.
When a tender is for supply of goods for example; is accepted, it still does not
become a contract. It simply means that as to and when goods are required, an
order will be placed. Placing of such order becomes acceptance.
Thus a standing offer does not become a contract until when an order according
to terms of the tender is placed with the party which accepted the tender.
Sometimes tenders are invited to the supply of a specific quantity of goods or
services. When the tenders are accepted, it becomes a contract as a specific
tender.
AUCTION.
At auction sale, the auctioneer invites offers. The offer is made by the bidder
and the auctioneer accepts the offer on the fall of the hammer.
ACCEPTANCE.
When a person to whom an offer is made signifies his assent thereto, the offer
is said to be accepted. An offer when accepted becomes a promise.
CONSIDERATION.
The existence of consideration in promise signifies the commitment of parties
to create a legal relationship. Further more; the law does not recognize an
agreement to do something without anything in return.
According to Pollock Consideration is the price for which the promised of the
other is bought Hence no consideration no contract.
Worth to note that consideration is something in return. It can take the form
of loss, or responsibility given, suffered or undertaken by the other.
Definition: When at the desire of a promissor, the promisee or any other
person has done or abstained from doing, does or abstain from doing something,
such an act or an abstinence or promise is called consideration for the promise.
Thus goes the maxim Ex nudo pacto non-oritur actio i.e. Agreement made
without consideration is void.
Currie Vs. Musa (1975) was a landmark case that also gave birth to an
acceptable description to considerations. It explained that consideration is
some right, interest, profit or benefit from one party for which forbearance,
detriment, loss or responsibility given, suffered or is undertaken by the other.
To exemplify detriment forming consideration, another useful landmark case is
of Carlil Vs. Carlill Smoke ball Co. Mrs. Carlill acted upon an advertisement by
buying and using Carbolic smoke ball to prevent influenza. She however still
Odiwuor Kelly B.Com (Acc. & Aud. Option), L.L.B (Crim., Ban. & Ins. Option), Dip-Law (KSL)
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contracted.
Held by court that she was entitled to damages as her consideration to
contract was the inconvenience in swallowing the balls while the consideration
for the company was increase of sales of the smoke ball.
CLASSIFICATION OF CONSIDERATION
Consideration may be executory or executed.
a. Executory Consideration.
This consists of a promise made by one party and promise made by the other
party to the contract.
Examples:
i.
b. Executed Consideration.
Executed consideration is constituted by something done by the plaintiff
because of a promise made by the defendant.
Examples:
(i) If in example a. (ii) above Mss. A had paid for the suit in advance, the
payment would be the executed consideration for Mr. Bs promise.
(ii) Mutiso puts an advertisement in the local newspaper that he has lost his
goat of a certain description, and promises to pay Kshs. 200/= to anybody
who returns it. Munene reads the advertisement, goes to look for the goat,
finds it in the bushes nearby and returns it to Mutiso.
Here what Munene has done is what constitutes the executed consideration
required to make Mutisos promise (executory consideration) binding on him.
PRIVITY OF CONTRACT.
A stranger to contract cannot sue because it is a cardinal principle of law that
only a party to contract can sue.
To crate a legal relationship, privity of contract (contractual relationship) is
necessary. However, if this were strict position of law some considerable havoc
would result. The law therefore recognizes a few exceptions, some of which are
identified below:
a). Beneficiary to a trust: A beneficiary can file a suit to enforce his benefits
even though he is not a party to the contract. This is because the contract was
for his benefit.
b). Estoppel and acknowledgement: When a party by his consent admits or
acknowledges liability, that party is deemed to be an agent of the third party
and shall be stopped from denying his liability to be incurred by the third party.
He can therefore enforce the contract.
c). Assignment of a contract: Where the contract is assigned, the assignee can
enforce the contract e.g. a wife can enforce recovery of an insurance policy
assigned by her husband.
e). A holder in due course of a bill of exchange can sue prior parties thereto
although there is no privity of contract between him and them. This is a
statutory exception under Bill of Exchange Act.
f). Promise made for voluntary service: Though the service was not prompted by
any formal agreement to consideration, law would in certain cases impute quasi
contract and thus enabling the volunteer to claim reasonable payment.
g). Gift: Gifts communicated to the beneficiary are recognized benefits and the
law would enforce transfer of these gifts and presents.
h). Agency: Consideration made so as to create agency relations is also
enforceable.
Difference between stranger to consideration and stranger to contract.
From the foregoing, it will be observed that a third party on behalf of the
promisee may perform consideration. This third party (a stranger) is allowed at
law to call for enforcement of the promise to such a contract. This is contrary
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Vs. Meritt.
ii. Agreement between parent and child: These are made on goodwill of the
parties and are not legally binding.
iii. Agreements between close relatives based on love and affection in their
said relationship are also non enforceable.
c. Social agreements.
These would not be enforceable unless it is agreement under seal.
CAPACITY.
The general rule is that any person may enter into any kind of contract.
However, there are certain classes of persons to whom specific rules applies,
with regard to their capacity to contract.
These are as follows:
- A minor or an infant.
- A person of unsound mind.
- Married women.
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Alien or non-citizens.
Corporations.
Trade unions.
Foreign sovereign.
An insolvent or bankrupt.
A MINOR
The capacity of parties emphasizes that parties entering the contract must be
capable of understanding it and forming a rational judgment as to its effect
upon their interests. For this purpose, the law stresses that the person has to
be a major, thus assuming that he is mature. Age of Majority Act (Laws of
Kenya Cap. 33), in the 5th Amendment in 1974 made the age of majority to be 18
years Section 2.
Every person therefore is competent to contract who is sound mind and has
attained the age of majority according to the law to which he is subject and is
not disqualified from contacting by any law to which he is subject. A contract
with a minor is binding, voidable, or void depending on their nature or type.
Binding Contracts:
An infant may only be bound by agreement the object of which is to enable him
obtain necessities. They can sue and be sued on them.
Necessities: The Sale of Goods Act, Sec. 4(2) defines necessities as goods
suitable to the condition in life of such infant or minor and to his actual
requirements at the time of sale or delivery
Thus the statutory requirements of necessaries for a minor are:
1. That the goods were suitable to the condition in life and;
2. That they were suitable to the infants actual requirements at the
time of sale or delivery in the sense that he had not at the time, an
adequate supply from other services.
In the case of Nash Vs. Inman, the defendant was an infant college student.
Before proceeding to college, his father bought him the necessary clothing
material he required. However, while in college, he contracted and was supplied
with additional clothing material by the plaintiff but did not pay and was sued.
His father gave evidence to the effect that he had purchased for him all the
clothing material he required. It was held that the contract was unenforceable,
as the plaintiff had failed to prove that the goods were necessaries.
Other necessaries: The definition above limits necessaries to goods as defined
in Sale of Goods Act.
However, infants/minors may of necessity need legal advice, lodging facilities,
provision of transport and even education by formal or informal instruction.
Contracts for Beneficial Services: Case law demonstrates that a contract
whose object is to benefit an infant is enforceable by or against him.
In the case of Doyle Vs. White City Stadium, the plaintiff was an infant but
qualified city boxer. He applied to join the British boxing board and was given a
license thereby becoming a member.
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One of the rules of the association was that the board was empowered to
withhold payment of any price money won if a boxer was disqualified in a
competition. Doyle was disqualified in a completion and the board withheld
payment. He sued to enforce the agreement. It was held that much as he was a
minor, the contract was for his beneficial service and so enforceable.
In all these cases of necessaries to a minor, the court will recognize a
reasonable price and not always the agreed price Section 4(2).
Voidable contracts:
Infants cannot be held liable against these contracts. Further more, the infant
is entitled to avoid such contracts or repudiate such contracts during infancy or
within a reasonable time after attaining the age of majority.
Such contracts includes:
- Lease agreements.
- Purchase of company shares.
- Partnership agreements.
Under Section 12 of the Partnership Act, an infant partner is entitled to avoid
the partnership agreement during infancy or within a reasonable time after
attaining the age of majority. Under Section 13, if he does not avoid the
contract after attaining the age of majority, he becomes liable for debts and
other liabilities of the partnership from the date he becomes a major.
Void Contracts:
Under the Infants Relief Act 1874, which is a Statute of General Application in
Kenya, certain contracts entered into by infant are deemed void.
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and estates, executes their larches and assist them in their pleadings. The
judges are their counsels, the juries are their servants and the law is their
guardian.
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LEGALITY OF CONSENT
If contract is not on free will the contract becomes violable at the option of
the person whose consent was not free.
Two or more people are said to consent when they agree on same thing in the
same sense. Consent is not free when it is created by:
- Coercion,
- Undue influence.
- Misrepresentation.
- Fraud.
- Mistake etc.
A contract made due any of the elements listed above avoidable at the option
of the party whose consent was not free.
COERCION.
Coercion is committing or threatening to commit any act forbidden by the penal
code, detaining or threatening to detain any property to the prejudice of any
person whether directly or by using another person so that the contract may be
made.
Elements of coercion may be identified as below:
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UNDUE INFLUENCE.
A contract is said to be induced by undue influence where the relations
subsisting between the two parties is such that one of them is in a position to
determine the will of the other party and uses the position to obtain an unfair
advantage over the other.
It implies unfair and improper conduct or pressure on the mind of the other
person as against physical fear created by coercion. Consequently the person
whom undue influence is exercised is indirectly compelled to enter into the
transaction.
Elements of undue influence:
- One person is in a position to dominate the will of the other.
- The party domination the will uses the position to dominate the will of
the other.
One is deemed to be in a position to dominate the will of another in the
following circumstances:
- He holds a real or apparent authority over the other.
- He stands in a fiduciary relation to the other e.g. a doctor and a patient.
- The contract is made with a person whose mental capacity (temporary or
permanent) is affected by reason of age, illness, alcohol etc.
When person who is in a position to dominate the will of the other entering into
an unconscionable bargain with the other, the burden of proof that this was not
the intention shall be upon him, incase of evidence to the effect that the
contract was unconscionable. Unconscionable bargains are unfair bargains and
equity deems them voidable at the option of the innocent party.
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Poverty and Obedience so as to become a nun. She accordingly had to gift away
all her bounties.
She was not allowed to seek any external advice. As a result, she gifted all the
properties to the Mother Superior. After several years, she sought for legal
advice. However, some more years passed before she brought legal action to
recover her properties. Court held that the transfer of her properties was
voidable since it was under undue influence. However, she had taken too long to
come to court and as a mater of legal principle, delay defeats equity. The court
could therefore not order return of her properties.
MISREPRESENTATION.
A representation is not a term, but a statement of fact made by one party to
the other during their preliminary negotiations, which was intended to induce
the other party to enter into that contract. It must be a statement of fact and
not an opinion. Misrepresentation is therefore an incorrect statement made
innocently.
This can be through the two following ways:
- By positive statement: This involves making a positive representation
stipulation without any reasonable base or ground, honestly believing it
to be true though it is not true.
- Breach of duty: This is when a person commits a breach of duty to
disclose information, which gives him an advantage by misleading the
other to his advantage.
When a person induces another person even innocently to make a mistake
regarding a subject matter of the agreement. He is making a misrepresentation.
Essentials of misrepresentation:
1. Representation or omission of a material fact.
2. The representation is of a fact not an opinion.
3. The representation must have been made during negotiation.
4. That the statement was not a mere puff or sales talk.
5. The statement must have been intended to be relied upon by the
representee.
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FRAUD.
This is misrepresentation made with an intention to deceive or cheat.
Fraud means and includes any of the following acts committed by the party to
contract (or his connivance or by his agent) with an intention to deceive another
party thereto, (or his agent) inducing him to enter into the contract:
1. The suggestion that a material fact is true when it is not, by a person
who does not believe it to be true.
2. Active concealment of a material fact by a person having knowledge of it.
3. A promise made without any intention to perform it.
4. And any other act fitted to deceive.
5. Any such acts or omission as the law specifically declares to be
fraudulent.
Elements of fraud are as follows:
1. False representation of a fact and not an opinion.
2. The representation must have been made by the party himself or on his
knowledge.
3. The representation must have been made knowingly or carelessly without
ascertaining its truth.
4. The intention of misrepresentation must have been to deceive.
5. The party filling a suit must have suffered harm, loss or damage due to
the misrepresentation. Thus, no damage, no fraud.
Silence is fraud if there is a duty to speak i.e. when silence is equivalent to
speech. This duty to speak is necessary when the material fact to be disclosed
may affect the willingness of the other party to enter into the transaction.
Such fact is called a material fact.
Disclosure of every material fact is particularly required in the following
circumstances:
- Contract of insurance.
- Contract of immovable property.
- Contract of suretyship.
- Allotment of shares in companies.
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- Contract of marriage.
- Contract of family settlement.
Distinction between fraud and misrepresentation:
Whereas fraud is made intentionally, misrepresentation is made innocently.
Misrepresentation makes a contract voidable with right to claim damages, while
fraud attracts rescission of the contract without damages.
LEGALITY OF OBECT
A contract must be entered for lawful consideration and lawful object. Lawful
object is with regard to the purpose or design i.e. the object for entering in to
the contract must be legal.
If the plaintiff gives evidence that manifests any form of illegality in the
nature of the contract he wishes to enforce, his action will fail. This explains
the maxim- Ex turpi causa non-oritur action i.e. There can be no action upon a
wrongful ground. In same cases, object and consideration may be the same.
Public policy means the endeavors of the law or government for public good,
welfare or interest. Act asserting the contrary to public policy is void. The
term public policy is so widely interpreted that is seen as an unruly horse. It is
vague and often misused. For this reason the court had to clarify the meaning
of public policy and categorize kinds of contracts opposed to public policy.
The following agreements have been identified to be opposed to public policy:
- Agreement for trading with an enemy of the state: This is because it
may give unforeseen strategic advantage to the enemy state.
- Agreement interfering with administration of justice: These can take
any of the following forms:
a. Agreements stifling prosecution: These are agreements, which
encourages making money through crimes and in abuse of law.
b. Maintenance and Champerty: Maintenance means financing a suit
by a third party who has no legal interest or locus standi.
Champerty implies a bargain by which one party is to assist the
other party to recover property and is to share the proceeds of
the action
c. An agreement which interferes with direct administration of
justice e.g. bribery.
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that of the buyer and may advertise such business, but not using the
firms name.
3. Trade combinations:
Created with the object to provide standardized goods to eliminate cut-throat
competition to regulate opening and closing of shops though in a way trade
limitation, it is not void as it is for the good and warfare of the public.
4. Service contracts:
It is valid to an employer to prevent their employee in engaging themselves in
similar transactions during the course of their engagement.
5. Control of distribution:
A manufacturing industry is at liberty to sell a product to a particular seller or
distributor.
QUASI CONTRACTS.
These are contracts that are presumed to exist in law, without any formal
agreement between the parties. They are based on the principle of justice and
fairness that a person must not obtain unfair advantage over another person
due to lack of contract.
Examples or quasi contracts are found in the following cases:
- Supply of necessaries: If a person without capacity to contract is
supplied with necessary goods and services that are suitable to his
status in life, quasi contract comes into existence and constructively
creates a contract between the parties. This is the case with minors and
infants who are disqualified from entering into oral or written contracts.
- Responsibility of finder or goods: A person who finds goods belonging
to another person is under no obligation to take them into his custody.
However if he takes them into his custody, he is under a duty placed by
law (quasi contract) to look for the true owner and take proper care of
the goods.
- Payment made by mistake: A person to whom money has been paid by
mistake or anything delivered by mistake must repay or return it to the
person who paid it by mistake e.g. A pays money to B by mistake, the
money is actually due to C. In this case B must refund the money to A.
-
DISCHARGE OF CONTRACT
Discharge of contract means termination of rights and obligations arising out of
contacts. This may be by two ways:
- Act of the parties. This is also called breach of contract.
- By operation of law.
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Discharge by breach:
Breach means failure/ refusal for performance by one party.
This discharges the contract unless the aggrieved party waves his right by
words or conduct. Breach of contract may be actual or anticipatory.
Actual breach is when one party fails to perform the contract on the appointed
date.
Anticipatory breach takes place before the actual date of contract
performance.
This may be express or implied. Express when the promissor informs the
promisee of his inability or intention not to perform the contract, or Implied
when the promissor does an act, which renders the performance impossible.
In breach of contract, the promisee can sue the promissor for loss or damages
incurred or choose to keep the contract open until the day of intended
performance.
If the promisee treats the breach as actual, he will be entitled to the loss by
the difference in market price i.e. the difference in price between the contract
date and the date of communicating breach of contract.
If the promisee keeps the contract open and subsequently such a contract
becomes illegal or impossible, the promissor shall be discharged by the illegality
or impossibility of performance. So goes the maxim- Lex non-cogit ad
impossibilia - Law does not recognize impossibilities, since an impossibility does
not create an obligation - Impossibilium nulla obligato est.
Consequently the promisee shall not be entitled to damages or loss
compensation.
By performance.
By impossibility.
By death.
By insolvency.
By agreement or consent or waiver.
By merger.
By lapse of time.
By frustration.
FRUSTRATION
-
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damages.
Additional expenses do not as a general rule frustrates a contact unless
it becomes commercially useless to perform. A contract is not
frustrated if:
- The event in questing is provided for by the contract.
- One of the parties is to blame.
2.
3.
4.
5.
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2. Right of rescission:
This is the yielding or giving of any secret profit or benefit enjoyed by a person
in breach of his duty of trust e.g. Agents, Directors, and Trustees etc. Any
benefit accruing to such persons by virtue of their positions in equity belongs to
the other party and must be given up.
3. Quantum Merut: This is when one party performed his work as per the
contract and then the contract repudiates e.g. by impossibility or illegality. He
thereby becomes entitled to remuneration portion or work he has performed.
4. Specific performance: Usually damages are granted by way or monetary
compensation. When this, however, is not possible, the court may compel the
actual performance. Since this is as per discretion of the court, it has gone
ahead to lay down cases where Specific or special performance shall not be
granted as follows:
i. Where monetary compensation is adequate remedy.
ii. Where contract is of personal nature.
iii. Where the court cannot effectively supervise the execution of the
contract e.g. building contract.
iv. Where it will be inequitable e.g. against a minor.
v. Where the contract made be the company is ultra-vies the company.
vi. Where the contract is revocable.
vii. Made by trustee in breach or trustship.
5. Injunction order: Since contract of personal nature cannot be enforced by
special performance due to impossibility of effective supervision by the court,
injunctive orders are therefore made where breach is strictly forbidden. The
promisee is by this order, compelled and has no alternative but to abide by the
contractual obligations.
6. Restitution: This literally means restoration. When a contract becomes void,
the party who received benefits at the expense of the other ought to restore
them.
7. Cancellation or rectification: When through fraud or mutual mistake of
parties, title to property has passed registration records may be revisited at
the order of a court of law for the purposes of reversing, correcting, rectifying
or canceling such records in the register of titles. Either party may also apply
for such rectification of the register.
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