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The Law of Contract

A contract can be defined as a lawful agreement made by one or more persons within the limits of their contractual capacity, with the intention of creating a legal obligation, communicating such intention without vagueness, each to the other and being of the same mind as to the subject matter to perform positive or negative acts which are possible of performance. (Gibson 1997 p.9). Contracts create responsibilities. These responsibilities are called obligations. Obligations therefore are simply legal relationships made up of rights and duties between the specific legal subjects. For obligations to carry the force of law or simply be legally and contractually binding, it is necessary that there should be agreement or the semblance thereof, between the parties. The following are some of the contracts that one finds at law;

Sale Hire purchase Insurance Mortgage Suretyship Lease Partnership agency

Essentials of a Valid Contract

It is clear that some contracts are legally binding and some are not for various reasons. A minor (person less than 18 years old) in Zimbabwe cannot enter into a contract to receive the benefits or discharge the duties of marriage because the law says they lack the legal capacity to enter into such transactions. Some of the fundamental prerequisites for a valid contract are set forth below; Communication of intention Lawful contractual capacity Serious intention to contract Clarity of agreement to avoid vagueness Practical possibility of performance Legality of agreement Consensus as to the subject matter of the contract

Animus Contrahendi Just as there may be a contract without offer and acceptance, so may there be offer and acceptance without a contract. This may be so because the parties though in agreement, have no intention to bond themselves by a legally enforceable contract- they lack the animus

contrahendi,or the agreement cannot in law be treated as a contract.Lack of animus contrahendi may be expressed in an agreement e.g in De Villier and Another V Sports Pools (PVT) Ltd 1976 (2) RLR 233

Offer and Acceptance

As pointed out earlier , contractual agreements are frequently characterized by the issue of offer and acceptance. This is not unique to the legal fraternity. The accounting practitioners and academics always maintain that for every debit there must be a credit. In plain language, the point is that where there is a hand that is giving, there must of necessity be a hand that is taking. One can only receive if there is someone giving. It is a give-and-take situation. In that regard, an offer is an unconditional business proposition which if accepted, results in a contract. It should therefore be distinguished from what is described as an invitation to treat. Proponents of womens fashion claim that what lustful men regard as revealing clothing by women is not an offer for sexual favours but simply their taste of dressing. Their point is that dressing is an invitation to treat, not an offer. When invited, one can tender their offers, which may or may not be accepted. Therefore such invitations as one sees in the Herald for University of Zimbabwe tenders should not be misconstrued as offers. Neither are advertisements placed by Macro or Jaggers Wholesalers or OK Zimbabwe, nor indeed any other display of prices in town or anywhere. The case of Crawley v Rex 1909 TS 1105 underscores the error of taking an invitation to treat for an offer. Crawley the customer entered Rexs shop to buy some cheap tobacco whose price he had seen on the placard outside the shop. On the first time that Crawley entered the shop, he bought the tobacco and went his way. On second thoughts he re-entered the same shop owned by Rex and asked for some more of the cheap tobacco. But this time the shopkeeper refused and upon being requested to leave the shop, Crawley refused to do so without the tobacco. The courts ruling on the matter is as follows: It is clear that according to the ordinary law of contract, the display of an article with a price on a shop window is merely an invitation to treat. It is in no sense an offer for sale the acceptance of which constitutes a contract..