Professional Documents
Culture Documents
1.1 Law of Contract
1.1 Law of Contract
LAW OF CONTRACT
1.0 INTRODUCTION
The Law of contract is a very important branch of business Law. The basic principles of
the Law of Contract are provided under the Law of contract Act Cap 345 of 1975 R.E
2002 (Law of Contract Ordinance cap 433 of 1961) and case Law lay down by courts.
The Law governing contracts in Tanzania has its source in the following:-
i. Local Statutes
These are legislation passed by the parliament since the independence to date
English common Law simply means decision of courts on matters based on business
and commerce in Britain. It is found in the Law Report like, Appeal cases Law
Reports (A.C.) English Law Report (E.R) and All English Report (All ER). This Law
applies in Tanzania when the contract ordinance is silent on any particular aspect to
contract Law.
This is Law laid down in course of deciding cases at the level of High Court or Court
of Appeal. It is obtained on interpreting the statute or other precedents. It is
binding like a statutory Law.
These are authoritative works written by legal experts in this field of Law. They
interpret the Law putting it in the correct perspective. Because of this function
courts refer to them when seeking an interpretation on certain areas of Law.
Are found in customs and norms of different tribes. They are used whenever there
is a legal vacuum.
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In order for a valid and enforceable contract to be formed, the following elements must be
proved as all existing:-
Considerations
Legal capacity
Written formalities.
In any valid contract there must be two parties. One party makes an offer and another party
makes acceptance.
I. Offer / proposal
Is a statement or presentation made by the offeror to offeree in order to induce the offeree to
enter into binding agreement upon acceptance of it’s terms.
An offer is communicated expressly (i.e. orally or in writing) or impliedly (through conduct) and it
can be made to a specific person or group of persons (i.e. specific offer) or to the public at large
(i.e. general offer).
Certain
Definite
Capable of acceptance and
Indicating firm and final expression of intention
Other wise such statement will remain a mere invitation to treat ( i.e. invitation to make an
offer).
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(a) Auction
Offer is made when potential buyers (bidders) bid for the price at auction.
(b) Tender
Advertisement for tender is not an offer but merely an invitation to treat. (Nditi
1985:18)
Display of goods on shelves with their Price tags is not an offer for sale but merely
invitation to treat.
Offer is made when customer pick the items and present them to cashier ready for
payment.
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Issue of circular / catalogues advertising goods with their prices is not an offer but
merely invitation to treat. See Spencer V. Harding (1879)
When a person request information in order to make up his minds before making an offer,
such request is not an offer it self but a mere invitation to treat. See Harvey V. Facey
(1893)
When passenger bus brake and stand at bus stop, that is an invitation to treat not an
offer
Offer is made when Passengers board the bus for the purpose of being transported.
II. Acceptance
Refer to willingness or assent shown by the offeree to the term of the offer. Once offer and
acceptance cross each other, a binding agreement (Promise) arises as between the parties
Auction sale – In this situation, an auctioneer makes acceptance. He signifies this through
various ways depending on the circumstance e. g. when the hammer falls to the highest
bidder.
Tenders - The person(s) who invites tenders are the one who will accept the successful
tender.
Advertisement for sale of goods at stated price – When advertiser fills customers order.
Self service store / Supermarket – When cashier accept the money and issue receipt to
customer.
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Passenger bus – When the bus driver takes off at the bus stop with passengers and yet
takes the correct fares.
iii. Silence does not amount to acceptance – i.e. acceptance must be by some positive
act.
iv. Acceptance must correspond exactly with the terms of the offer. ( i.e. must be
absolute and unqualified).
- The use of Post Office – Household fire Insurance Co. V. Grants (1879)
At Common Law the Postal rule states simply that once a mail is correctly addressed a proper
stamp put on it and put in right hands of the Postal officer, then, that is effective communication
(See House hold Fire Insurance Co. V. Grant (1879) Unless expressly excluded by the offeror
(See Adams V. Lindsell)
This means that acceptance is binding as against both proposer and acceptor when it is put in the
course of transmission.
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Any Supported revocation by acceptor using quickest means of communication will be in effective.
The Laws of Contract Ordinance Cap 433 does not provide expressly for a rule governing Postal
services. However S. 4(2) of the ordinance is used instead. It reads – The communication of an
acceptance is complete.
From the above quoted provision one may deduce the rule that where an acceptor posts his letter
of acceptance so that the letter is out of his power, then the proposer is bound but not the
acceptor himself. That is to say a contract has been concluded in as far as the proposer is
concerned. The acceptor is not bound until his acceptance comes to the knowledge of the
proposer. i.e. he may revoke his acceptance by using any quickest means of communication such as
telephone etc.
Lapse / termination of the offer means to bring to an end or to cause the offer to cease. It
means the offer become negative thus incapable of being accepted to bring into being a binding
promise.
Non acceptance within prescribe time terminate an offer, if no time is fixed, non acceptance
within reasonable time terminate an offer (See Ramsgate Victoria Hotel co. V. Montefiore (1866)
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(ii) Revocation
Offer lapse / terminate when offeror revoke (draw back) his offer at any time before
acceptance is made by the offeree. However, for such revocation to be effective, notice of
revocation must reach the offeree himself or by means of any other reliable person.
It should be noted here that, even if offeror gives out time for acceptance, he can still revoke
his offer at any time before the expiry of such time unless the offeree has furnished
consideration.
(iii) Death
Death of offeree terminate the offer and personal representative can not accept the offer on
behalf of his estate (Nditi 1987: 30)
On the other hand the death of the offeror requires notification to the offeree especially for
contract not involving personal Services.
When the offeree rejects an offer, it comes to an end and any subsequent attempt to accept it is
inoperative. (Masawe 1995:20)
In contracts with automatic machines e.g. dispensing, cigarettes, admission of cars to parking
lots, cash dispenser machines etc. the machine makes an offer and are accepted by paying /
receiving money and receiving a ticket as receipt.
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QN 1
The acacia store wrote in news paper advertisement saying that one TV set Sony 20” made in
Japan was on sale for Tshs. 200,000/=
Norah telephoned the store that she wanted one of the set. The store replied that it was sold
out and therefore could not fill her order. Norah sued Acacia store for breach of contract. Was
Acacia Liable? Give reason for your answer. (20 marks)
QN .2
QN .3
Dudubaya say to Anna “I wish to marry you” Anna Smiles broadly and during the weekend, she
takes him to visit her parents in the home village at Bagamoyo Coast Region. Dudubaya was very
exited and presented gifts to the parents of Anna. Both of them thereafter return to Dar Es
Salaam late on Sunday. Then a week later Anna marries Pesamingi. Is there a breach of contract.
QN. 4
(a) Daud L. proposes by letter to sell a house to Khamis B. for Tshs. 5,000,000/= A
letter was posted on 6th instant. The letter reaches Khamisi B on 8 th instant.
Khamisi B accepted Daudi’s proposal by letter sent by post on 9 th instant. The letter
reaches Daudi on the 11th.
(b) In the above case, if Daudi L. revokes his offer on 8 th instant and the letter
reaches Khamisi B. on 10th. When is the communication of revocation complete? (10
marks)
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QN.5
(a) List down he circumstances which may give rise to Lapse of an offer.
(b) A Dodoma business man wrote to ‘A’ of Dar Es Salaam offering to sell a certain
product item. Upon receipt of the letter, he telephoned acceptance. Three days
before this the offeror had posted a letter of revocation which arrived after
dispatch of the acceptance telegram.
Required
Determine the position of the parties and indicate the post rule referred to.
QN.6
J. happened to walking along the sea shore when come across a handbag full of Documents.
She picked it up and handed it over to a nearest Police post. Later in the Days she read in
the standard news paper an advertisement announcing a reward to the finder of a lost
handbag similar to the one she had delivered. She immediately report at the police post to
claim for the reward.
Ascertain the legal implications involved and position of J. in the case above. (10 marks)
QN.7
(b) Explain how and when contracts with automatic machines e.g. dispensing cigarettes,
admission of cars to parking lost, cash dispenser machines etc. are formed (8
marks).
QN.8
2.2 Consideration
Consideration centres on exchange of values embodied in goods or service. So one who parts with
value must be given some value in return by the one in whose favour he parted with his value.
(Quid Pro quo) nothing should not go for nothing.
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“Some right, interest, profit or benefit accruing to the one party or some forbearance, detriment
losses or responsibility given suffered or undertaken by the other”.
(2) Under S.2 (i)(d) of Law of Contract ordinance, consideration is defined as follows:-
“Where at the desire of the promisor the promisee or any other person has done or abstained
from doing or does or abstain from doing or promise to do or abstain from doing something, such
act or abstinence or promise is called consideration for the promise.
I. Types of consideration
The above definitions of consideration suggest two main types of consideration namely:-
i) Executory consideration
In order for consideration to support contractual claims the following rules apply:-
A past consideration is the one which is wholly furnished before the promise is
made. As a general rule past consideration is not good consideration ( i.e. null and
void).
However the following exceptions are there to the above general rule.
(i) A promise to compensate for a past act which has been performed without any
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(iii) Promise made in writing to pay time barred debt and signed by both Parties.
(b) Consideration must move from the promisee or any other person.
(c) Consideration must be sufficient but need not adequate recompense to the
promise. (ie Consideration must be sufficient but need not be adequate)
Since not every act, abstinence or promise constitute consideration, the following tests
are essential to determine sufficiency of consideration:-
1. Performance of public duty owed to the defendant is not sufficient consideration even if
there was a promise made prior to it. See Collins V. Godefroy (1831)
How ever performance of Public duty in excess of the one owed to the plaintiff following
promise of payment from the defendant is sufficient consideration to support claims for
such payment.
Consideration need not be adequate provided it is the one agreed by the parties at
the time of making contract, provided no element of fraud, unsoundness of mind or
coercion can be proved before the court of Law. Under this rule, the court is able
to enforce a contract for washing a saloon car for Tshs. 200,000/= provided both
parties have attended to this value.
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QN .9
c) Past consideration is null and void thus can not support any contractual claim.” Discuss
d) Mr. X. offered a reward of Tshs. 500,000/= to whoever found his lost briefcase. He reported
the fact to the Police station and given Rb no. 05/001/04. One day Omera, Police man
arrested Dudubaya from his home for beating Mr. Nice and when searching he found a
briefcase belonged to Mr. X. and submitted it the police Station. Mr. Omera now demand
Tshs. 500,000/=. Advice him accordingly.
The parties to a contract must intend to create legal relationship; otherwise their agreement will
become unenforceable by law.
The presumption is that all domestic agreements do not intend to legal bound.
However, this presumption is not applicable to any agreement made by the Couples if they are
separated or are about to separate. See Merrit V. Marrit (1970)
The presumption is that all business agreements intends to legal bound However the parties may
expressly declare that the do not wish to assume contractual obligations (i.e. not legal bound).
QN .10
b) The presumption in domestic agreement is that no intention to legal bound while in that of
business there is intention. Do you agree?
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(a) Age:
Any person below the age of majority is known as ‘minor’ or ‘Infant’ the general rule is that a
minor is incompetent to make contract. This general rule is supported by the following facts:-
(i) When a minor contract for supply of non –necessary the contract is void.
(ii) When a minor makes payments using negotiable instrument e.g. cheque – the contract is void.
(iii) Agreement made by major age person to pay debt incurred during minor age – is void. Hence
in the above sort of agreements a minor is not held liable because he is incompetent.
However the following EXCEPTIONS are there to the above general rule whereby a minor
becomes competent to such sort of contract and he becomes liable under the contracts:
Necessaries in this context means goods suitable to the condition in life of such infant/ minor or
other person and to his actual requirements at the time of sale and delivery. If a minor is supplied
with necessary at the time he had well supplied with such necessaries the supplier of such items
is not entitled to reimbursement. See Nash V. Inman (1908)
‘Contracts for minor’s benefits such as contract for service, education etc. are binding to minor.
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Drunkenness
The general rule is that the listed above persons are in- competent to contract
However the following EXCEPTIONS are there to the above general rule.
(i) A person who is usually of unsound mind but occasionally of sound mind may make
contract when he is of sound mind.
(ii) A person who is usually sound mind, but occasionally unsound mind may not make
contract when he is of unsound mind.
(c) Corporation
QN. 11
(a) What are the facts underlying the general rule that minors are not competent to contract
(6 marks)
(b) There are two exceptions underlying the general rule where under some special
circumstances the law allows minors to enter into contracts. Outline the exceptions ( 14
marks)
QN12
(b) Describe the capacity of unsound person as per section 12(1) of the law of contract
ordinance, Tanganyika 1963.
(c ) What are the facts vitiating capacity to contract under the law of contract ordinance?
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Consent means agree freely knowing the reality or truth of the fact i.e. Consensus ad idem
(meeting of two minds upon common purpose). Lack of real consent on either or both
parties to a contract renders such contract void or voidable.
Mistake
Misrepresentation
Duress / coercion and
Under influence.
1. Mistake
Occur where one or both of the parties enter into contract under a misapprehension or
misunderstanding as to a fundamental fact of the contract. However, mistake should be of
fact not of law. See Sharp Bros and Knight V Chant (1917) 1
This is bilateral identical mistake. Under this type mistake two cases are involved.
Relates to buying something which already belongs to you. See Cochrane V. Wills
(1865)
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Contract made under any of the above mistake become void. However where parties
contract face by face there will be no mistake as to a party contracting with, instead a
contract will be voidable for fraud
2. Misrepresentation
Occur when one of the parties to a contract made a false statement presentation either:-
Innocently
Negligently or
Fraundlently
Contract made under circumstances of misrepresentation is voidable at an option of the
innocent party.
The party misled can ask the court to rescind the contract but has no right to ask
for damages.
The party misled may sue for rescission and /or damage.
The party misled may sue for rescission and /or damage.
Mistake Misrepresentation
Property moving can be recovered from Property moving can only be recovered from
contracting parties and even from third party contracting party but not from third party in
good faith.
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3. Duress /coercion
This means actual violence or threat of violence to the person of the contracting party or
those near and dear to him. Duress probably render the contract voidable.
NOTE:
4. Undue influence
This occur when a contract is concluded by two parties, one has got stronger mind over another.
In this case it is presumed that the consent of weaker mind’ part is not freely given
The laws specify certain relations to contract as having circumstance undue influence. These are:
QN. 13
a) What do you under by the term “consent” under the law of contract”
(c) Outline and explain briefly the circumstances which vitiate the consent of the
parties in a contract.
(d) i) Mention four (4) types of mistakes falling under unilateral or mutual mistake
ii) How will a mistake as to the identity of the other party make a contract
voidable?
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i) Misrepresentation
ii) Concealment
iii)Fraud
3.0 TYPES OF CONTRACTS
Valid contracts
Voidable contracts
Void contract / unenforceable contracts
Illegal contracts.
3.1 Valid contracts
Is the one which is enforceable by law i.e. it contains all essential elements for the creation of
contract in the eyes of law. As such it gives rise to rights and obligations between the
contracting parties.
Is the one which is not enforceable by law. i.e. it lack essential element for the creation of a valid
contract. Void contract give no rights and obligations between the parties since the court holds
to be no contract at all but a nullity from the beginning.
Is a contract with full legal forces until the party entitled to rescind it does so, short of
which the contract remain intact.
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Agreement made by minor such as having shares in a company or becoming a partner. Such
contract could be enforced against him unless he avoid it within a reasonable time.
N.B. Property moving as between contracting parties can be recovered but not from third
party. See Philips V. Brooks
Examples
Discharge of contract means the end of contract i.e. the mutual release of the parties from their
contractual obligations.
There are various ways through which a contract may come to an end. These are:-
1. By Performance:
This means each party to the contract fulfils his obligations or duties as agreed. For instance, ‘A’
agree with ‘B’ to sell his shoes for Tshs. 10,000/=. This contract is discharged by per formance
when ‘A’ deliver shoes to ‘B’ and ‘B’ pay Tshs. 10,000/=.
2. By agreement:
A contract may be discharged through mutual agreement. Parties may agree to abandon the
contract without claim for damage. This is easy to do since a contract which is freely formed may
be freely discharged. However in a situation whereby one of the parties has performed his duties
and the other one has outstanding obligations, to discharge such contract by agreement, the
latter must furnish a satisfactory consideration for his release ( i.e. accord and satisfaction)
3. By Frustration
This occur due to the happening of an event beyond the control of either party which makes
performance of the contract impossible
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4. By Breach
(i) Where one party fails to perform his obligation under the contract. e.g. Seller fails to
deliver ordered goods or deliver wrong quality goods.
(ii) Where one party expressly states that he will not perform his obligation (renunciation).
(iii) Where one party’s act makes performance on the other party impossible. See Omnium
D’enterprises and other V. Sutherland (1919)
N.B
(a) Any breach which takes place before the time of performance has been arrived is called
“anticipatory breach” e.g (ii) above.
QN. 14
QN. 15
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A remedy is the means given by law for enforcement of one’s infringed right.
The following remedies (courses of action) are avail able to an injured party whenever
there is a breach of contract.
(a) Damages
This is another type of remedy whereby the court on application by the plaintiff
orders the defendant to discharge his obligations as per terms of the contract.
(e.g. to deliver the goods). This is granted only where damages cannot be sufficient
compensation to the injured party.
(c ) Injuction
This is also an order issued by the court on application by the plaintiff seeks to the
defendants from committing a breach of contract or reverse the effect of an
existing breach. It restrains a party in breach of contract from performing more
of the acts which amount to further breach of contract.
This remedy is used to recover a reasonable sum where there is a contract for
supply of goods or services but the parties have not fixed any precise sum to be
paid or work has been done under a void contract.
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QN.16
What courses of actions are available in law to the injured party when a contract is broken? (20
marks)
QN. 17
What are the remedies available to the injured party in the event of a total breach of a contract
(10. marks)
QN.18
There are times when the remedy of damages will prove inadequate to the victim of a breach of
contract. this might occur where the plantiff wishes to purchase a unique item which cannot be
acquired elsewhere.
Required:
List the remedies which may be awarded by the court in the above circumstances. (10. marks)
(ii) Injuction
QN 19
Explaining the course of action available in law to the party injured when there is breach of
contract.
QN 20
a) Define a contract
b) If you are not capable to contract, effect will not be given to your agreement except for a
few exceptions. Comment.
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