The facts of the matter at hand are that there was a valid contract of sale between Gweru

Agro Foods and Organic Foods whereby the latter agreed to deliver Apples and Bananas
twice weekly for a price which was paid prior to the delivery of the merx. There was an
increase in the price of fuel to the detriment of Gweru Agro Foods followed by a
nationwide stay away and complete shutdown of the internet together with the non-
existence of fuel which prompted the breach of the contract by Gweru Agro Foods. In light
of the aforementioned facts, Organic Foods has approached the Zimbabwean Courts for
redress since it is the aggrieved party in this instance claiming specific performance,
damages dues to loss of profit and damages for delivery of rotten fruits (partially defective
merx). In the following submissions, the writer is going to make a detailed analysis of the
issues for consideration, which are, whether or not Gweru Agro Goods breached the
contract, whether or not Organic Foods can sue for specific performance and whether or
not Organic Foods is entitled to the damages its claiming in light if the general rule in
regards to breach of contract and the exceptions which absolve one from liability in
particular instances.
The point of departure is to note that a contract of sale is a contract in which one person
promises to deliver a thing to another, who on his part promises to pay a certain price 1.It
becomes valid when the price and the goods have been agreed upon. Anything that is
done thereafter is an obligation of the parties to the contract which they are mandated to
do as per the doctrine of pacta sunt servanda. Suffice to say, a contract of sale must, of
course, comply with those requirements that need to be satisfied for all contracts. In
addition to this, the parties have to agree on two essential characteristics, that is, the merx
and the purchase price before the contract can be described and treated as a contract of
sale. The existence of a consensus regarding the purchase price and the thing sold shows
that a contract of sale has been concluded and distinguishes it from other types of
contract2. Due regard should be given to the fact that failure to perform the terms of the
contract constitutes breach and the general rule is that breach of a contract entitles the
innocent party to remedies against the party guilty of defective performance or the alleged
breach3. Having due regard to the aforementioned contentions, the writer shall begin by
assessing the merits of the claims by Organic Foods in light of the general rule.
Firstly, by failing to deliver the merx in time as per the conditions of the contract, Gweru
Agro Foods fundamentally breached the terms of the contract by effecting delivery after
three weeks. It is important to note that in a contract of sale delivery must be done at the
time, place and packaging stipulated by the contract, and this obligation to deliver is a
material obligation, so failure to deliver constitutes fundamental breach which entitles the
buyer to either cancel the contract or claim damages. And the position of the law is quite

1
R. H Christie, Business Law in Zimbabwe,1998
2
Havenga P (2004) General Principles of Commercial Law, Juta & Co
3
Nicoz Diamond Insurance Ltd v Clovgate Elevator Company (Pvt) Ltd HH-76-18
clear in this regard as it was stated, by Innes JA in Farmers’ Co-operative Society (Reg)
v Berry4 that,
“Prima facie every party to a binding agreement who is ready to carry out his own
obligation under it has a right to demand from the other party, so far as it is possible, a
performance of his undertaking in terms of the contract.”
In the exercise of its discretion the court may grant or refuse specific performance.
Specific performance will be refused if it will lead to an injustice, or if it will be unduly harsh
and burdensome on the defendant5 .And in this matter the fact that there were increases
in the fuel prices by 250% cannot absolve Gweru Agro Foods from their contractual
obligations because the fact that a contract has become uneconomical to perform does
not mean it has become impossible6. It is my contention, therefore that Organic Foods is
well within its rights to claim for specific performance of the contractual obligations from
Gweru Agro Foods basing on the above-mentioned strongly persuasive authority.
Secondly, the writer would like to advance that the claim by Organic foods for damages
for loss of profit due to failed delivery has merit in light of the general rule on breach of
contract. It is trite that in contract, where one party commits a breach, the innocent party
is entitled to a remedy. As to what the remedy should be, the election is for the innocent
party to make. A careful and searching analysis of the rules with regard to general and
special damages is to be found in the judgment of the English Court of Appeal in Victoria
Laundry (Windsor) Ltd v Newman Industries Ltd7 wherein ASQUITH J said:
(1) It is well settled that the governing purpose of damages is to put the party whose
rights have been violated in a position, as far as money can do so, as if his rights have
been observed… This purpose, if relentlessly pursued, would provide him with a
complete indemnity for all loss de facto resulting from a particular breach, however
improbable. This, in contract at least, is recognized as too harsh a rule. Hence,
(2) In cases of breach of contract, the aggrieved party is only entitled to such part of
the loss actually resulting as was at the time of the contract reasonably foreseeable as
liable to result from the breach.
(3) What was reasonably foreseeable depends on the knowledge then possessed by
the parties or, at all events, by the party who later commits the breach.
It is therefore my contention that in light of the above-mentioned test, it was reasonably
foreseeable by both parties to the contract of sale, Gweru Agro Foods in particular, that
loss would accrue from failure to deliver the merx in time as per the specifications of the

4
1912 AD 343, at p 350:
5
Zivanomoyo v Dingani (HMA 02-19, Case No Civ A 64/17) [2019]
6
Yodaiken v Angehrn and Piel 1914 TPD 254
7
[1942] 2 KB 528 at 539-540.
contract. Authority to substantiate this proposition being Plywood Products Ltd v
Tropical (Commercial and Industrial) Ltd8 wherein it was stated that,
“The buyer’s loss of profit resulting from non-delivery of the property may be recovered
if the seller knew at the time of contracting that the buyer required the property for
resale of for use in manufacturing for sale”
Thus, Organic Foods is well within its rights to sue for this loss of profit as it was greatly
inconvenienced by the late delivery and consequently aggrieved by such loss to the
extent of approaching the courts for redress against this blatant disregard of the legally
binding agreement of sale both parties were supposedly committed to.
Furthermore, Organic Foods’ claim for damages for the delivery of rotten fruits has merit
and as such, needs to be given due regard to, given the severity of this breach in light of
the general rule in such circumstances9. The point of departure is to note that Gweru Agro
Foods delivered partially defective products to Organic Foods and a defect in this regard
may be described as an abnormal quality or attribute which destroys or substantially
impairs the utility or effectiveness of the property sold or for which it is commonly used10.
It goes without saying that the appropriate relief which Organic Foods is entitled to is the
aedilition remedy of actio quanti minoris despite that they accepted the delivery of the
partially defective merx. This is particularly so because unequivocal acts of ownership
after discovering a defect, such as repairing a defective car, will therefore be taken as a
waiver of the right to redhibit but not of the right to bring the action quanti minoris unless
the buyer goes further, as by deliberately and without protest, paying the full price11. The
fact that the innocent party in this matter paid the full price in advance, that is, prior to
delivery of the merx does not prohibit them from claiming a reduction in the purchase
price in that particular delivery because the actio quanti minoris remedy involves retaining
the property and claiming a reduction in price12. The writer contends that where several
articles are sold and some found defective, as in this case with half the fruits being rotten,
the normal measure of aestimatorian damages, that is, the difference between the price
and the market value of the property in its defective state at the time when and the place
where the property was when the defects were or ought to have been discovered, may
be applied if the contract is divisible, if it is indivisible, the buyer is entitled to relief only if
a valuation of all the artilcles, defective and sound, shows that he obtained less than he
contracted for13, a notorious fact in the present dispute because a grave injustice has
been committed against Organic Foods and thus, it is only right that they get that which

8
1955 SR 58
9
Nicoz Diamond Insurance Ltd v Clovgate Elevator Company (Pvt) Ltd HH-76-18
10
Holmdene Brickworks (Pty) Ltd v Roberts Construction Co Ltd 1977 (3) SA 670
11
Trutter v Dunn 1905 ORC 115
12
R.H Christie in Business Law in Zimbabwe pg165
13
Alhadeff v Le Grys 1956 R & N 73
is stipulated in the contract they agreed to and a reduction in the purchase price
considering the circumstances.
However, the exception to the general rule in our law is that if as a result of vis major or
other supervening physical or legal act, performance of a contract has become impossible
through no fault of the debtor, the obligations under the contract are extinguished 14.It is
my submission therefore that despite that Gweru Agro Foods failed to perform its
contractual obligations, it is not liable to pay damages for failing to doing so because there
were circumstances beyond the control of any reasonable trader in its stead which
promoted the violation of the terms of the contract. It is this proposition that the writer is
going to elucidate upon having cognisance of the test which was established in Firstel
Cellular (Pvt) Ltd v NetOne Cellular (Pvt) Ltd15 wherein it was held that,
The courts will be astute not to exonerate a party from performing its obligations under a
contract that it has voluntarily entered into at arm’s length. Thus, the suspension of a
contractual obligation by dint of vis major or casus fortuitus can only be allowed in very
compelling circumstances. The courts are enjoined to consider the nature of the
contract, the relationship between the parties, the circumstances of the case and the
nature of the alleged impossibility. In particular, it must be shown that the impossibility is
objective and absolute in contradistinction to one that is merely subjective or relative.
Again, the contract must have become finally and completely impossible of
performance, as opposed to the situation where one party is only temporarily disabled
from fulfilling its obligations.
In light of the above-mentioned dicta, the writer contends that indeed the factors that
promoted the violation of the terms of the contract of sale by Gweru Agro Foods satisfy
the 4-tier test established in this binding precedent by a superior court of record16 and
evidence to that effect shall be proffered in the following submissions.
Firstly, that, of the three weeks that Gweru Agro Foods failed to deliver, the price of fuel
increased by 250% and was non-existent in the third week qualifies as hardship which
absolves the party alleged to have breach the contract from all liability. It is trite to note
that the mere fact that performance has been rendered more onerous than could
reasonably have been anticipated at the time of the conclusion of the contract does not
exempt the obligor from performing the contract17 and thus the increment of fuel prices is
a merely a fact that sheds more light on the intricacies of the situation at the time and not
one to act as a defence against failure to perform the terms of the contract. However,
hardship can only be found if the performance of the contract has become excessively

14
Acting Minister of Industry & Anor v Tanaka Power (Pvt) Ltd 1990 (2) ZLR at 208 at p 214
15
(Civil Appeal No SC 237/13) [2015]
16
Section 168 and 169 of the Constitution of Zimbabwe Amendment Act No. 20 of 2013
17
See Hans Stoll and C'reorg Gruber in Peter Schlechtriem and Ingeborg Schwenzer (eds) Commentary on the
UN Convention on the International Sale of Goods (2 English ed, Oxford University Press, Oxford, 2005)
onerous or, in other words, if the equilibrium of the contract has been fundamentally
altered18 and thus the non-existence of the fuel in the third week satisfies this definition
as it can be ascertained that any trader in Zimbabwe at that particular moment in time
would not have been able to deliver the merx as per the prescriptions of the contract
because it was absolutely impossible to do so. Case law to the effect of buttressing this
proposition is Frye’s (Pty) Ltd v Ries19 wherein it was held that,
“A contract is void on the ground of impossibility of performance only if the impossibility
is
absolute (objective). This means, in principle, that it must not be possible for anyone to
make that performance. If the impossibility is peculiar to a particular contracting party
because of his personal situation, that is if the impossibility is merely relative
(subjective), the
contract is valid and the party who finds it impossible to render performance will be held
liable for breach of contract.”

The writer therefore contends, in light of the above-mentioned dicta, that Gweru Agro
Foods cannot be held liable for the breach of the contract because the event in question
did not fall in the sphere of risk of the aggrieved party, it was unforeseeable as well as
unavoidable as the circumstances were beyond the control of anyone in the country, well
maybe except for government officials. It is therefore my submission that the claim for
damages for loss of profit therefore falls on this note as it is destitute of merit in light of
the aforementioned proposition.
Furthermore, there was a mass stay away in Zimbabwe which resulted in the
Zimbabwean boarder being completely shut for 48 hrs. This was largely due to ZIMRA
boarder officials not turning up for work due to the stay away and the goods clearance
system, ASYCUDA World, which was down as the Minister of State Security had ordered
a complete shutdown of the internet. The writer contends that this was indeed an
impossible situation despite being temporary and as such Gweru Agro Foods cannot and
must not be held liable for any damages being claimed by Organic foods because there
was essentially no breach taking due regard of the prevailing circumstances at the time.
It is trite to note that temporary impossibility or partial impossibility do not extinguish the
contract. The duty to perform is simply suspended while the impossibility continues20.
Authority to further substantiate this exemption from liability of the defaulting party can be
found in Article 79 of the CISG21 which provides that,

18
Principles of lnternational Commercial Contracts, above n 15, Article 6.2.2.
19
1957 3 SA 575
20
Niemand v Okapi Investments (Edms) Bpk 1983 (4) SA 762 (T)
21
United Nations Convention on Contracts for the International Sale of Goods. See also ARTICLE 7.1.7 of the
UNDROIT PRINCIPLES OF International Commercial Contracts 2016
 (1) A party is not liable for a failure to perform any of his obligations
if he proves that the failure was due to an impediment beyond his control
and that he could not reasonably be expected to have taken the impediment
into account at the time of the conclusion of the contract or to have avoided
or overcome it, or its consequences.
(3) The exemption provided by this article has effect for the period
during which the impediment exists.

And thus, it can be rightly said that during the time that the events, which promulgated
Gweru Agro Foods to fail to adhere to the prescriptions of the contract, were in operation,
it was absolved from liability as this drawback was not reasonably foreseeable by both of
the parties during the time they were contracting. It is therefore my contention that given
the plethora of caselaw and international instruments supporting exemption from liability
in such cases as the one in which Gweru Agro Foods is in, it would be grossly
unreasonable to allow the claims being made by Organic Foods to be given effect to and
quite frankly, a vulgarity upon the dictates of the law because the position of the law is
clear and as such should be given effect to.
Another point worthy of the discussion is the principle that failure to give notice to the
innocent party of impediments in performance of one’s contractual obligations entitles the
innocent party to damages no matter the reasons promulgating the default of the other
party22. It is my contention that the matter at hand is an exceptional one because it was
literally impossible for Gweru Agro Foods to communicate its quandary to Organic Foods
since the internet was shutdown due to a ministerial decree. Guidance and direction can
be taken from Peters, Flamman & Co v Kokstad Municipality23 wherein Solomon ACJ
remarked as follows,
“… Nor is it necessary to consider generally what are the circumstances in which it can
be said that a contract has become impossible of performance. For the authorities are
clear that if a person is prevented from performing his contract by vis maior or casus
fortuitus, under which would be included such an Act of State as we are concerned with
in this appeal, he is discharged from liability”
And alas! The writer cannot but insist on the inviolability of the exemption from liability of
Gweru Agro Foods because the situation was objectively impossible for any trader in
Zimbabwe at that particular time to perform their duties in light of international commercial
sales because they were in no position to effectively deliver the merx or tender any
communication to their foreign counterpart. It is trite to note that since the Roman days,
of principle of impossibilium nul!a est obligatio, or there is no obligation to perform

22
ARTICLE 7.1.7 (4) of the UNDROIT PRINCIPLES OF International Commercial Contracts 2016
23
1919 AD 427 at pp 434-5
impossible things24, has been recognised and therefore the claims being made by
Organic foods fall in light of the abovementioned propositions.
Moreover, due regard also needs to be given to the issue of passing of risk and its effect
on the validity of the claim being made by Organic Foods. It is a particular importance to
note that the risk of destruction of or damage to property normally passes to the buyer
when the contract is perfecta25 . In the straightforward case of an unconditional sale of
specific goods this means that the risk passes on the conclusion of the contract unless
agreed to the contrary26. Risk includes all occurrences which would otherwise be treated
as supervening impossibility, so any such occurrence after the risk has passed will relieve
the seller from any duty (e.g of delivery) which has become impossible of performance
but will not relive the buyer from his duty of paying the full price. The writer therefore
contends that the point of departure is to note that the moment both parties agreed to the
contract of sale, risk passed onto Organic Foods. And since it has been established
beyond a shadow of doubt that there was a supervening impossibility, despite it being
temporary, the detrimental effects which the impediment had on the merx cannot be
imputed on Gweru Agro Foods because any other person who would have exercised
reasonable care on the merx would have experienced the same problems of rotten fruits
since the hand of time was at play here. It is therefore right to say that the supervening
impossibility exempted Gweru Agro Foods from liability and the fact that risk had passed
in this instance also exempts the company from paying any damages since it was not, in
any manner, responsible for the late delivery or the delivery of rotten fruits since the
factors that promoted this was objectively beyond anyone’s capacity to control.
One can therefore definitely ascertain that the claims by Organic Foods have no merit in
the Zimbabwean Court of law taking due regard of the circumstances that promoted
Gweru Agro Foods to fail to adhere to the prescriptions of the contract because the
position of the law is clear, that is, the general rule in our law is that if as a result of vis
major or other supervening physical or legal act performance of a contract has become
impossible through no fault of the debtor, the obligations under the contract are
extinguished27. This was the position then and still is the position in light of recent cases
such as Standard Chartered Bank Zimbabwe Limited v China Shougang
International28. The courts have a discretion to amend the claim by Organic Foods and
the only remedy that seems appropriate in this instance is a reduction of the purchase
price, at most, and specific performance since the contract is still in effect. Another

24
The idea of adapting agreements and promises to an unforeseeable and extraordinary change has its roots in
roman philosophy with Cicero and Seneca. The doctrine found its way into the Canon law in the 14'h
century, referring to it as rebus sie se habentibus.
25
Fitwell Clothing v Qourn Hotel 1966 RLR 323 (A)
26
Horne v Huttt 1915 CPD 331
27
Acting Minister of Industry & Anor v Tanaka Power (Pvt) Ltd 1990 (2) ZLR at 208
28
SC 49-13
remedy that may still suffice is a renegotiation of the contract since there needs to be a
state of equilibrium in every contract and the prevailing situation in Zimbabwe tips the
scales in favour of Organic Foods if the contract continues, rather than allow both parties
to enjoy the fruits of business bona fide together.
The writer therefore contends that, taking due regard of the approach the Zimbabwean
Courts are inclined to, that is, a reluctance towards absolving the party alleged to have
breached a contract from liability, the claims by Organic Foods are likely to be amended
to meet the circumstances of the matter at hand and given effect to. It is however, up to
the discretion of the court to ascertain whether the defences of supervening impossibility
and hardship that can be employed by the client have merit. The client, however, must
add an addendum to the contract to address the changes in the economy of Zimbabwe
so as to ensure that the equilibrium between the parties is not fundamentally altered. Post
succeeding in this defence, resort can be had to the remedy of restitutio in integram or
parties going back to the status quo ante and start afresh so as to engage in a mutually
profitable venture once more.
 BIBIOGRAPHY
BOOKS
Coenraad et al (2003) South African Mercantile and Company Law,8th Edition; Juta & Co
Ltd, Lansdowne.
Havenga P (2004) General Principles of Commercial Law, Juta & Co Ltd, Lansdowne
R H Christie (1998) Business Law In Zimbabwe,2nd Edition; Juta & Co Ltd, Western
Cape.

CASE LAW
Acting Minister of Industry & Anor v Tanaka Power (Pvt) Ltd 1990 (2) ZLR
Alhadeff v Le Grys 1956 R & N 73
Farmers’ Co-operative Society (Reg) v Berry 1912 AD 343, at p 350:
Firstel Cellular (Pvt) Ltd v NetOne Cellular (Pvt) Ltd (Civil Appeal No SC 237/13) [2015]
Fitwell Clothing v Qourn Hotel 1966 RLR 323 (A)
Frye’s (Pty) Ltd v Ries 1957 3 SA 575
Holmdene Brickworks (Pty) Ltd v Roberts Construction Co Ltd 1977 (3) SA 670
Horne v Huttt 1915 CPD 331
Nicoz Diamond Insurance Ltd v Clovgate Elevator Company (Pvt) Ltd HH-76-18
Niemand v Okapi Investments (Edms) Bpk 1983 (4) SA 762 (T)
Peters, Flamman & Co v Kokstad Municipality 1919 AD 427
Plywood Products Ltd v Tropical (Commercial and Industrial) Ltd 1955 SR 58
Standard Chartered Bank Zimbabwe Limited v China Shougang International SC 49-13
Trutter v Dunn 1905 ORC 115
Victoria Laundry (Windsor) Ltd v Newman Industries Ltd [1942] 2 KB 528 at 539-540.
Yodaiken v Angehrn and Piel 1914 TPD 254
Zivanomoyo v Dingani (HMA 02-19, Case No Civ A 64/17) [2019]
STATUTORY INSTRUMENTS
United Nations Convention on Contracts for the International Sale of Goods
UNDROIT PRINCIPLES OF International Commercial Contracts 2016
Constitution of Zimbabwe Amendment Act No 20 of 2013

JOURNALS
Schwenzer I (2005) Commentary on the UN Convention on the International Safe of
Goods 2nd Edition, Oxford University Press, Oxford,