THE UNIVERSITY OF ZAMBIA

INSTITUTE OF DISTANCE EDUCATION

NAME : MUSOLO CHARLES KAZEMBE

COMPUTER NO. : 19000106

LECTURER : MR BRIAN MWANZA

TASK : ASSIGNMENT 1
Introduction

A contract is a written or spoken agreement that is enforceable by law. To form a contract,

four elements must be established: offer, acceptance, intention to create legal relations and
consideration.1

The general common law principle is that a valid contract may be entered into by any person
recognised by law as having a legal personality that is natural persons, corporations and the
state Crown Lands Comr v Page.2

Legal capacity is the attribute of a person who can acquire new rights, or transfer rights, or
assume duties, according to the mere dictates of his own will, as manifested in juristic acts,
without any restraint or hindrance arising from his status or legal condition. Blacks Law
Dictionary3

However, the following classes of persons are in law incompetent to contract, or are only
capable of contracting to a limited extent or in a particular manner:

1. Bankrupt

Chapter 82 the bankruptcy act- A bankrupt’s property vests on adjudication in the

trustee in bankruptcy. See

2. Minors
3. Persons of unsound minds
4. Alien enemies
5. Drunkards

Minors

At common law persons under the age of 21 years of age are designated “infants” and had
only a limited capacity to contract. From January 1, 1970, the Family Law Reform Act 1969
reduced the Age of majority to 18 and authorised the term “minor” as an alternative to
“Minor” is now the preferred term. The capacity of a minor to contract is still regulated by
the common law, modified by the Minors Contracts Act of 1987 which repealed the troubled
statute, Infants Relief Act 1874.

1
Robert Duxbury Contract Law 7 ed (2008) 7-11
2
Crown Lands Comr v Page [1960] QB 274
3
Black’s Law Dictionary 8th Edition
Contract between Adult and Minors

The general principle is that a contract made by a minor with an adult is binding on the adult
but not on the minor. If, after attaining his majority, he ratifies it by an act confirming the
promise he made when a minor, he is bound. There need be no consideration for the act of
ratification. A contract by a minor is not void any money or property transferred by him
under the contract can be recovered only if there has been a total failure of consideration.
There are three exceptional cases when a minor is to some extent bound.

1. Necessaries: A minor is bound to pay for the necessaries supplied to him under a
contract. Sale of Goods Act 1979 s. 3, re-enacting Act of 1893, provides.
“…where necessaries are sold and delivered to an infant (or minor)… he must pay a
reasonable price therefor….”
Necessaries in this section mean goods suitable to the condition of life of such infant
(minor) and his actual requirement at the time of sale and delivery.”
Necessaries are those things without which a person cannot reasonably exist and
include food, clothing, lodging, education or training in a trade and essential services.
The “Condition of life” of the minor means his social status and his wealth. Two
exactly same minors may have different necessities. Whatever the minors’ status the
goods must be suitable to his actual requirement. If he already has enough fancy
waistcoats, more cannot be necessary Nash v. Inman (1908).4
5
The nature of the minor’s liability for necessary goods is uncertain. The sale of
Goods Act makes him only liable to goods “sold and delivered”.6 This is at a
reasonable price, not at an agreed price. This suggests that he has quasi-constractual
obligation to recompense the seller for the benefit conferred and accepted. The discta
was supported in Roberts v Gray [1913]. 7 The contract on a minor is not valid if it
contains harsh and onerous terms, this was supported by Lord Atkin J in Fawcett v.
Smerhurst [1914].8
2. Beneficial Contract of Services: If it is for the minors benefit that he should be able
to obain employment which would be difficult if he could not make a binding
contract. The law allows him to do so, provided that the contract, taken as a whole, is

4
Nash v. Inman [1908] 2 KB 1 CA
5
Trietal on Contracts
6
Sales of Goods Act
7
Roberts v Gray [1913] KB 1 520,CA
8
Fawcett v. Smethurst [1914] 84 LJKB 473
 manifestky for his benefit. The same stance was reaffirmed in the case of Clement v
London & North Western Railway [1894].9

In conclusion, there are some categories of individuals whose authority is restricted by law
to make contracts. Due to mental disorders or drunkenness and minors, the main categories
are individuals considered unable to contract. There are situations, however, in which a
contract with a minor is binding. These include contracts for the supply of necessaries, and
service contracts for the benefit of the minor.

9
Clement v London & North Western Railway [ 1894] 2 QB 482
 QUESTION 2

The general rule of contract law is that an agreement does not have to take a specific written
form in order to be deemed a binding contract sometimes contract will simply be oral.
Therefore, this paper aims at discussing with the aid of authorities the existence and content
of an oral contract.

To start with, a valid contract is a contract that the law will enforce and creates legal rights
and obligations. A contract valid ab initio contains all the three essential elements of
formation which are agreement (offer and acceptance), intention (to be bound by the
agreement) and consideration (the promise to pay for goods or services received). In addition,
a valid contract may have to be in writing to be legally valid, however, most contracts may be
oral, or a combination of oral and written words).10

Where an individual alleges the existence of an oral contract, to the satisfaction of the court,
the party has the duty of justifying the claim. Where the only record is something along the
lines of phone call and/or call notes, this can be incredibly hard. One way to confirm an oral
contract is by testimony of witnesses. If the other parties were present at the oral negotiation
between the two principal parties and are able to testify, so this could be one way of
demonstrating the existence of this verbal agreement. In their evidence, these other people
would be able to show that they heard the terms of the arrangement.11

Where an individual alleges the existence of an oral contract, to the satisfaction of the court,
the party has the duty of justifying the claim. Where the only record is something along the
lines of phone call and/or call notes, this can be incredibly hard. One way to confirm an oral
contract is by testimony of witnesses. If the other parties were present at the oral negotiation
between the two principal parties and are able to testify, so this could be one way of
demonstrating the existence of this verbal agreement. In their evidence, these other people
would be able to show that they heard the terms of the arrangement.12

One other way in which an oral contract is validated is through the credibility of the parties.
The credibility of the party can be established or questioned in court. This isn’t the same
thing as witness credibility or character credibility. It is more a matter of proving that an
10
Monahan Geoff., Essential Contract Law 2nd Edition, Cavendish Publishing ltd. Wharton Street, London,
(2001).
11
Treitel, G. (2003) The Laws of Contract 11th edition. England: Sweet and Maxwell
12
Treitel, G. (2003) The Laws of Contract 11th edition. England: Sweet and Maxwell
individual action or statement was credible or incredible. 13 If a person walks inside a
restaurant and orders food then it’s understood that a binding oral contract is made. Claiming
that one thought the food was free and refusing to pay for the service would be an incredible
incident, and unlikely to hold up in court.

The relevant surrounding circumstances include the history of their relationship between the
parties and their conduct prior to and at the time of the contract. The parties conduct may
itself be the means by which the parties manifested their agreement. The court stated that
subsequent conduct could also be taken into account. Subsequent conduct may go the course
of dealings between the parties, which is relevant to determining the terms where a contract is
not reduced in writing. Such course of dealing will not normally occur until after the
commencement of the contract evidenced by it.14

In conclusion, proving that an oral contract was agreed upon can be difficult. This is why it is
advisable for parties to reduce their contract in writing. If a party makes an oral contract with
a stranger in business dealings, one of the two parties could easily deny ever agreeing to an
oral contract or claim that such an agreement was not made in good faith. Therefore,
credibility, course of conduct or witness testimony must be considered in most court cases
involving oral contract disputes.

13
John Hatchard and Muna Ndulo, The Law of Evidence in Zambia: Cases and Materials (Lusaka: Southern
African Institute for policy and research, 2013)
14
Colyer Fehr Tallow Pty v KNZ Australia Pty Ltd [2011]NSWC 457