A contract may be defined as a legally binding agreement made by 2 or more parties. It has also been defined as a promise or set of promises a breach of which the law provides a remedy and the performance of which the law recognizes as an obligation.
The most important characteristic of a contract is that it is enforceable. The genesis of a contract is an agreement between the parties hence a contract is an enforceable agreement. However, whereas all contracts are agreements, all agreements are not contracts.
TYPES OF CONTRACTS
Contracts may be classified as:
1. Written / specialty contracts
2. Contracts requiring written evidence
3. Simple contracts
4. Contracts under seal
1. WRITTEN CONTRACTS
These are contracts which under the law must be written, that is embodied in a formal document e.g. hire purchase agreement, contract of marine insurance, contract of sale of land.
Contracts under seal: this is a contract drawn by one party, sealed and sent to the party/parties for signature. Such a contract requires no consideration e.g. a lease agreement, mortgage, and charge.
2. CONTACTS REQUIRING WRITTEN EVIDENCE
These are contracts which must be evidenced by some notes or memorandum.
Contents of the note / memorandum:
1) A description of the parties sufficient to identify them.
2) A description of the subject matter of the contract
3) The consideration (value)
4) Signature of the parties
Examples include; contracts of insurance other than marine, contract of guarantee.
3. SIMPLE CONTRACTS
These are contracts whose formation is not subject to any legal formalities. The contract may be:
- Partly oral and written
- Implied form conduct of the parties
Examples include; contract of sale of goods, partnership agreement, and construction contracts.
ELEMENTS OF A CONTRACT
These are the constituents or ingredients of a contract. They make an agreement legally enforceable. These elements are:
- Formalities, if any
SOURCES OF LAW OF CONTRACT
Under section 2 (1) of the Law of Contract Act, Cap 23, the sources of law of contract are:
1. Substance of common law
2. Doctrines of equity
3. Certain Statutes of General Application
4. Other Acts of the Kenyan Parliament
CREATION / FORMATION OF CONTRACTS
A contract comes into existence when an offer by one party is unequivocally accepted by another and both parties have the requisite capacity. Some consideration must pass and the parties must have intended their dealings to give rise to a legally binding agreement. The purpose of the agreement must be legal and any necessary formalities must have been complied with.
An offer has been defined as: an unequivocal manifestation by one party of its intention to contract with another. The party manifesting the intention is the offeror and the party to whom it is manifested is the offeree.
RULES / CHARACTERISTICS OF AN OFFER:
1. An offer may be oral, written or implied from the conduct of the offeror.
2. An offer must be communicated to the intended offeree or offerees. An offer remains ineffective until it is received by the offeree.
3. An offer must be clear and definite i.e. it must be certain and free from vagueness and ambiguity. In Sands v. Mutual Benefits as well as in Scammell and Nephew Ltd v. Ouston,it was held that words used were too vague and uncertain to amount to an offer.
4. An offer may be conditional or absolute. The offeror may prescribe conditions to be fulfilled by the offerer for an agreement to arise between them.
5. The offeror may prescribe the duration the offer is to remain open for acceptance.
However, the offeror is free to revoke or withdraw his offer at any time before such duration lapses e.g. in Dickinson v. Dodds, the defendant offered to sell a house to the plaintiff on Wednesday 10/06/1874 and the offer was to remain open up to Friday 12th at 9.00 am. However on the 11th of June, the defendant sold the house to a 3rd party. The plaintiff purported to accept the offer of Friday morning before 9.00 am. It was held that there was no agreement between the parties as the defendant had revoked his offer by selling the house to a 3rd party on June 11th. A similar holding was made in Ruoutledge
v. Grant, where the defendant’s offer was to remain open for 6 weeks but he revoked or withdrew it after 4 weeks. It was held that there was no agreement between the parties.
6. The offeror may prescribe the method of communication of acceptance by the offeree. If he insists on a particular method, it becomes a condition.
7. An offer may be general or specific i.e. it may be directed to a particular person, a class of persons or the public at large. In Carlill v. Carbolic Smoke Ball Co, the defendant company manufactured and owned a drug name the “Carbolic Smoke Ball” which the company thought was the best cure for influenza, cold and other diseases associated with taking cold water. The company put an advertisement in a newspaper to the effect that a £100 reward would be given to any person who contracted influenza or related diseases after taking the smoke ball as prescribed i.e. 2 tablets, 3 times a day for 2 weeks. The advertisement further stated that the company had deposited £1000 with the Alliance Bank on Reagent Street as a sign of their sincerity in the matter. Mrs. Carlill who had read the advertisement bought and took the Smoke balls as prescribed but contracted influenza. The company rejected her claim and she sued. The company argued that the advertisement;
a. Was nothing but mere sales talk
b. Was not an offer to the whole world
c. Was not intended to create legal relations
The Court of Appeal held that though the wording of the advertisement was unclear, it amounted to an offer to the whole world and the person who fulfilled its conditions, contracted with the company hence Mrs. Carlill was entitled to the £100 reward.
EXAMPLES OF OFFERS
1. Public transport: as was the case in Wilkie v. London Passenger Transport Board.
2. Bidding at an auction as was the case in Harris v. Nickerson.
3. Submission of a tender
4. Application for employment
An offer must be distinguished from an Invitation to treat.
INVITATION TO TREAT
This is a mere invitation by a party to another or others to make offer or bargain. The invitee becomes the offeror and the invitor becomes the offeree. A positive response to an invitation to treat is an offer.
Examples of invitation to treat
1. Advertisement of sale by auction:At common law, an advertisement to sell goods or other property by public auction is an invitation to treat. The prospective buyer makes the offer by bidding at the auction and the auctioneer may accept or reject the offer. It was so held in Harris v. Nickerson where a commission agent had sued as auctioneer for failure to display furniture he had advertised for sale by auction. It was held that there was no contractual relationship between the parties as the advertisement was merely an invitation to treat and as such, the auctioneer was not liable.
2. Sale by display: At common law, the display of goods with cash price tags is an invitation to treat. The prospective buyer makes the offer to buy the items at the stated or other price which the shop owner may accept or reject. In Fisher-v-Bell, the defendant was sued for „offering for sale‟ a flick knife contrary to the provision of the Offensive Weapons Act. The defendant had displayed the knife in a shop with a cash price tag. Question was whether he had offered the knife for sale. It was held that he had not violated the Act as the display of the knife was an invitation to prospective buyers to make offers.
3.Sale by self-service: At common law, a sale by self-service is an invitation to treat. Prospective buyers make offers by conduct by picking the goods from the shelves and the offer may be accepted or rejected at the cashier’s desk. The offeror is free to revoke his offer to buy the goods at any time before reaching the cashiers desk. In Pharmaceutical Society of Great Britain v. Boots Cash Chemists (Southern) Ltd (1952).
The defendant owned and operated a self-service store which stocked among other things, drugs which under the provisions of the Pharmacy and Poisons Act (1933) could only be sold with the supervision of the registered pharmacist. The defendant’s pharmacist was stationed next to the cashier’s desk. The plaintiff society argued that the defendant had violated the Act as the pharmacist was not stationed next to the shelves where the drugs were displayed. Question was at what point a sale took place. It was held that the defendant had not violated the provisions of the Act as its pharmacist was stationed next to the cashier’s desk where the actual sale took place.
This case is authority for the proposition that in a sale by self-service, a sale takes place at the cashier’s desk. A similar holding was made in Lasky v. Economy Grocers Ltd.
TYPES OF OFFERS
1. Cross offers
This is a situation where a party dispatches an offer to another who has sent a similar offer and the two offers cross in the course of communication. No agreement arises from cross offers for lack of consensus between the parties. The parties are not at ad idem.
2. Counter offer
This is a change, variation or modification of the terms of the offer by the offeree. It is a conditional acceptance. A counter offer is an offer in its own right and if accepted an agreement arises between the parties.
Its legal effect is to terminate the original offer as in Hyde v. Wrench (1840), the defendant made an offer on June 6th to sell a farm to the plaintiff for £1,000. On 8th June, the plaintiff wrote to the defendant accepting to pay £950 for the farm. On 27th June, the defendant wrote rejecting the £950. On 29th June the plaintiff wrote to the defendant accepting to pay £1,000 for the farm.
The defendant declined and the plaintiff sued for specific performance of the contract. It was held that the defendant was not liable as the plaintiff‟s counter offer of £950 terminated the original offer which was therefore not available for acceptance by the plaintiff on 29th June as the defendant had not revived it.
A counter offer must however be distinguished from a request for information or inquiry.
Request for information:
An inquiry which does not change terms of the offer. The offeree may accept the offer before or after inquiry is responded to as was the case in Stevenson-v-Mc Lean, where the defendant had offered to sell 3,800 tonnes of iron to the plaintiff at £ 40 per tonne and the offer was to remain open from Saturday to Monday. On Monday morning, the plaintiff telegraphed the defendant inquiring on the duration of delivery. The defendant treated the inquiry as a counter offer and sold the iron to a third party. The plaintiff subsequently accepted the offer but thereafter received the defendant’s notice of the sale to the 3rd party. The plaintiff sued in damages fro breach of contract. It was held that the defendant was liable.
3. Standing offer
A standing offer arises when a person’s tender to supply goods and service to another is accepted. Such acceptance is not an acceptance in the legal sense. It merely converts the tender to a standing offer for the duration specified if any. The offer is promising to supply the goods or services on request and is bound to do so where a requisition is made.
Any requisition of goods or services by the offeree amounts to acceptance and failure to supply by the offerer amounts to a breach of contract.
As was the case in Great Northern Railway Co Ltd v. Witham. The plaintiff company invited tenders for the supply of stores for 12 months and Witham’s tender was accepted. The company made a requisition but Witham did not supply the goods and was sued. It was held that he was liable in damages for breach of contract.
In standing offer, the offeror is free to revoke the offer at any time before any requisition is made, unless the offeror has provided some consideration for the offeror to keep the standing offer open.
This consideration is referred to as, an option‟. This is an agreement between an offeror and the offeree by which an offeree agrees to keep his offer open for a specified duration. In this case, the offeror cannot revoke the offer.
In a standing offer, if no order to requisition is made by the offeree within a reasonable time, the standing offer lapses.
TERMINATION OF OFFERS
A contractual offer may come to an end or terminated in any of the following ways:
This is the withdrawal of the offer by the offeror. At common law, an offer is revocable at any time before acceptance.
Rules of revocation of offers
1. An offer is revocable at any time before it becomes effectively accepted. It was so held
in Paybe v. Cave. In Dickinson v. Dodds, the sale of the house by the defendant to a 3rd party revoked his offer to the plaintiff.
2. Notice of revocation must be communicated to the offeree. However, such communications need not to be effected by the offeror. It suffices, if communicated by a 3rd party as was the case in Dickinson v. Dodds.
3. An offer is revocable even in circumstances in which the offeror has promised to keep it open to a specified duration, unless an option exists, as was the case in Dickinson v.Dodds.
4. Revocation becomes legally effective when notice is received by the offeree.
5. An offer is irrevocable after acceptance. It was so held in Byrne v. Van Tienhoven.
6. In unilateral contracts, an offer is irrevocable if the offeree has commenced and continues to perform the act which constitutes acceptance.
7. A bid at an auction is revocable until the hammer falls.
An offer terminates if the offeree refuses to accept the same, the refusal may be express or implied from the conduct of the offeree e.g. silence by the offeree amounts to a rejection as was the case in Felthouse v Bindley.
3. COUNTER OFFER
This is a change or variation of the terms of the offer by the offeree. It is a form of rejection. The legal effect of a counter offer is to terminate the original offer as was the case in Hyde v.Wrench.
4. LAPSE OF TIME
If an offer is not accepted within the stipulated time and not revoked earlier, it lapses on expiration of such duration. Where no duration is specified, the offer lapses on expiration of reasonable time. What is reasonable time is a question of fact and varies from case to case.
In Ramagate Victoria Hotel Ltd v. Montefiore in early 6/1864, the defendant made an offer to purchase 40 shares of the plaintiff company, the offer was not accepted until November by which time the defendant had given up. The company sued for the value of the shares, the defendant pleaded that the offer had not been accepted within a reasonable time. It was held that the defendant was not liable as the offer had lapsed fro non-acceptance within a reasonable time.
A similar holding was made in Virji Khimji v Chatterbuck The defendant ordered timber from the plaintiff and indicated that it be supplied as soon as possible. The plaintiff did not respond but delivered the timber. 4 ½ months later, the defendant refused to take delivery and was sued. It was held that he was not bound to take delivery as his offer had lapsed for non- acceptance within a reasonable time.
The death of the offeror or offeree before acceptance terminates an offer. However, the offer only lapses when notice of death of the one is communicated to the other.
The unsoundness of mind of either party terminates an offer. However, the offer only lapses when notice of the insanity of the one is communicated to the other.
7. FAILURE OF A CONDITION SUBJECT TO WHICH THE OFFER WAS MADE
These are conditional offers. If a condition or state of affairs upon which an offer is made fails, the offer lapses. In Financings Ltd v. Stimson, the defendant opted to take up a vehicle on hire purchase terms. He completed the hire purchase application form and paid a deposit. This form constituted his offer. He took delivery of the vehicle but returned it to the showroom after 2 days for some minor rectification. The vehicle was stolen from the showroom and when recovered it was badly damaged by reason of an accident. The defendant refused to take delivery or pay installments and was sued. He pleaded the state of the vehicle. It was held that he was not liable as his offer had lapsed. This offer was conditional upon the motor vehicle remaining in substantially the same condition as it was before and since its condition had changed, his offer had lapsed.
This is the external manifestation of assent by the offeree. It gives rise to an agreement between parties. In legal theory, an agreement comes into existence at the subjective moment when the minds of the parties meet. This moment is referred to as Consensus ad idem (meeting of minds).
However, this subjectivity must be externally manifested by the offeree for the agreement to arise. Acceptance may be oral, written or implied from the conduct of the offeree.
RULES OF ACCEPTANCE
1. Acceptance may be oral, written or implied from the conduct of the offeree. In
Carlill v. Carbolic Smoke Ball Co,acceptance by Mrs. Carlill took the form of her conductby purchasing and consuming the smoke balls. In Brogden v. Metropolitan Railway Co,
where it was held that the 1st load of coal supplied by Brogden constituted acceptance of the defendants offer to supply the coal and hence there was an agreement between the parties.
2. The offeree must have been aware of and intended to accept the offer: A personcannot accept an offer whose existence he is unaware of. In Crown-v-Clarke, the Australian government offered £1,000 to any person who volunteered information leading to the arrest and conviction of the killers of 2 police officers. Any accomplice who gave information would be pardoned. Clarke, who was aware of the murder gave the information and the killers were arrested and convicted. However, he made it clear that he had given the information to clear his name. It was held that he was not entitled to the reward as he had given the information for a different purpose and therefore had not accepted the offer.
3. Acceptance must be unconditional and unqualified: The offeree must accept the offer in its terms, any variation or modification of the offer amounts to a conditional acceptance which is not an acceptance as was the case in Hyde v. Wrench where the plaintiff modified the defendant’s offer of £1,000 to £ 950.
4. An offer must be accepted within the stipulated time if any or within a reasonable time failing which it lapses. As was the case in Ramsgate Victoria Hotel v. Montefoire, where the defendant’s offer made in June was not accepted until November by which time had elapsed. A similar holding was made in E.A Industries Ltd v. Powyslands.
5. Acceptance must be communicated to the offeror in the prescribed method if any or an equally expeditions method. Where no method of communication is prescribed, the method to apply depends on the type of offer and the circumstances in which the offer is made.
6. As a general rule, silence by the offered does not amount to acceptance, it was so held in Felthouse v. Bindley. The plaintiff intended to buy a house owned by a nephew named John who had no objection. The plaintiff intended to buy it or £30 15p. He wrote to Jon stating „if I hear no more about him, I consider the horse mine at that price. John did not respond but 6 weeks later he gave the horse to the defendant for sale but instructed him not to sell the particular horse. It was sold by mistake. The plaintiff sued the auctioneer in damages for conversion. Question was whether there was a contract of sale between the plaintiff and John. It was held that there was no contract as John had not communicated his acceptance of the offer.
7. Where parties negotiate by word of mouth in each others presence, acceptance is deemed complete when the offeror hears the offeree’s words of acceptance. It
was so held in Entores Ltd v. Miles Far East Corporation , where Lord Denning observed that there was no contract between the parties until the offeror hears the words.
8. Where parties negotiate by telephone, acceptance is deemed complete when the offeror hears the offeree’s words of acceptance. It was so held in Entores Ltd v. Miles Far East Corporation.
9. Where parties negotiate by telex acceptance is deemed complete when the offeree’s words of acceptance are received by the offeror. It was so held in Entores v. Miles Far East Corporation.
10. In unilateral offers, commencement and continuation of performance constricts acceptance. During performance, the offeror cannot revoke the offer but to do so if performance is discontinued as was the case in Errington v. Errington and Woods.
A father bought a house where the son and daughter in-law lived by paying a deposit of £250 and raising the balance by a loan from a Building society. He promised to transfer the house to them if they paid all installments as and when they fall due. The £250 would be a gift to them.
They commenced payment of the installments but stopped before the entire sum had been paid. The father was compelled to pay the remaining installments. He declined the transfer of the house to them. It was held that he was not bound to do so as they had discontinued payments of the installments.
11. In standing offers, a specific order or requisition by the offeree constitutes acceptance and the offerer is bound as was the case in Great Northern Railway Co. v. Witham.
12. An offer to a particular/specific person can only be accepted by that person for an agreement to arise. It was so held in Boulton v. James.
13. An offer to a class of persons can only be accepted by a member of that class for an agreement to arise. It was so held in Wood v. Lecktrick.
14. An offer to the general public may be accepted by any person who fulfils its conditions. As was the case in Carlill v. Carbolic Smoke Ball Co.
15. The postal rule of acceptance:
Where the offeror expressly or impliedly authorizes the offeree to communicate
acceptance by post, acceptance is deemed complete when the letter is posted whether
it reaches its destination or not. It was so held in Byrne v. Van Tienhoven and Co Ltd.
a) Express authorization:
These are circumstances in which the offeror expressly permits the offeree to communicate acceptance by post. As was the case in Adams v. Lindsell, on 2/9/1817,
the defendant offered to sell to eth plaintiff a quantity of wood on certain terms and required a response in the course of post. The plaintiff received the letter on 5/9/1817 and posted an acceptance. On 8/9/1817 the defendant posted a letter revoking the offer. The plaintiff’s letter of acceptance was received on 9/9/1817. It was held that there was a contract between the parties as the plaintiff had posted the letter of acceptance by the time the defendant purported to revoke the offer. Hence, the revocation was ineffective.
There are circumstances in which the offeror by implication authorized the offeree to communicate acceptance by post.
In Household Fire Insurance Co.-v-Grant, the defendant offered to buy 100 shares to the plaintiff company. The offer was communicated by post. The Company allotted the shares to him and the company secretary made out the letter of allotment which was posted but never reached the defendant who was subsequently sued for the amount due on the shares. He denied liability on the ground that the company had not communicated its acceptance. However, it was held that since the company had posted the letter of acceptance, there was a contract and the defendant was liable. In Henthorn v. Fraser, X made an offer to Y to take up a lease. On the following day between noon and1 pm, X posted a letter withdrawing the offer which was received by Y at 5pm. At 3.50pm on the same day, Y had posted a letter accepting the offer. The letter was read by X on the following day. It was held that there was a contract between parties which came into existence at 3.50pm when Y posted the letter of acceptance.
The purported revocation at 5pm had no effect.
In Byrne v. Van Tienhoven and Co Ltd on 1/10 the defendant made an offer to sell to eth plaintiff 1000 boxes of tin plates but on 8/10 the defendant posted letter revoking the offer. The same was received on 15/10. On 11/10 the plaintiff telegraphed the defendant an acceptance which he confirmed by a letter posted on 15/10. It was held that there was a contract between the parties which come into existence on 15/10 when the letter of acceptance was posted.
c) No authorozation:
If the offeror does not expressly or implied authorizes the offeree to use the post but the offeror uses the post, acceptance is deemed complete when the letter of acceptance is received by the offeror.
16. If the offeror instructs his messenger to deliver to him the letter of acceptance in any from the offeree, acceptance is deemed complete when the letter is handed over to the messenger.
17. Acceptance need not be communicated to the offeror where such communication is expressly or impliedly waived. This was the case in Carlill v. Carbolic Smoke BallsCo, where Mrs. Carlill was not required to communicate the fact of purchase andconsumption of the Smoke balls.
18. Acceptance need not be communicated to the offeror where it makes the form of conduct. This was the case in Brogden v. Metropolitan Railway co Ltd.
Once an offer is accepted, an agreement arises between the parties as there is consensus between them. Offer and acceptance constitutes the foundation of a contractual relationship.
They do not constitute a contract as a contract must be characterized by other elements.
INTENTION TO CREATE LEGAL RELATIONS
In addition to offer and acceptance, an agreement must be characterized by intention. The parties must have intended to create legal relations. Intention is one of the basic elements of a contract as common law. An agreement is unenforceable unless the parties thereto intended such a consequence.
Ascertainment of intention:
To determine whether parties intended to create legal relations, courts consider;
1. Nature or type of agreement i.e. whether commercial or business and domestic or social.
2. The circumstances in which the agreement was entered into. These two factors demonstrate whether the parties intended to contract.
a) Business or commercial agreements;
In considering such agreements, courts proceed from the presumption that the parties intended to create legal relations.
These are intended to promote sales of the advertiser. They have a commercial objective. In Carlill v. Carbolic Smoke Ball Co. Ltd, the company had manifested an intention to create legal;relations by stating that it had deposited £1,000 with Alliance Bank Regent Street. Hence Mrs Carlill was entitled to the £100 as she had contracted with the company.
2. Employment agreements
These are commercial agreements intended to impose legal obligations on the parties thereto.
In Edwards v. Skyways Ltd, the plaintiff was a former employee of the defendant company as a pilot and was declared redundant but promised on ex-gratia sum. He provided consideration for the promise.
By reason of many other redundancies, the company was unable to make good the promise to Edwards who sued. It was held that he was entitled to the sum as this was a business agreement intended to create legal relations.
The court was emphatic that this was not a domestic agreement.
However, the circumstances in which a commercial or business agreement is entered into may show that the parties did not intend to create legal relations and this would be the case where honour clauses or honourable pledge clauses are used.
This is a clause in agreement to the effect that the parties do not intend to create legal relations.
It denies the agreement legal intention thereby converting it to a gentleman‟s agreement binding in honour only.
Such an agreement is unenforceable in law as was the case in Rose & Frank v. CromptonBrothers where the agreement between the two companies contained an honour clause, but oneof them purported to enforce the agreement.
The court of Appeal held that it was unenforceable as the honour clause had denied it legal intention.
A similar holding was made in Jones-v-Vernon Pools Ltd where the agreement had an honour clause.
It was observed that whenever an agreement contained an honour clause, the plaintiff was obliged to trust the defendant as the agreement cannot be enforced by court of law.
b) Domestic or social agreements
Courts proceed on the presumption that the parties did not intend to create legal relations.
1. Agreement between husband and wife
Such agreements are generally not intended to impose upon the parties any rigid obligations.
In Balfour v Balfour, the defendant was a civil servant in Sri Lanka. At the time, he and his wife were in Britain on holiday.
His wife fell ill and it became clear that she was not in a position to accompany him back to Sri Lanka.
He promised to send her 30 pounds per month for the duration they would remain apart. He did not and the wife sued.
It was held that her action was not sustainable as the parties had not intended to create a legal relationship. A similar holding was made in Gould v Gould.
2. Agreements between Parent and Child
Such an agreement is ordinarily not intended to be a contract but a working relationship.
In Jones v. Pandervatton, the plaintiff persuaded her daughter to leave a well paying job to study Law in Britain, she was promised a maintenance allowance as she studied. She reluctantly agreed. In the meantime, the plaintiff bought a house where the defendant lived as part of the maintenance. Before the daughter completed her studies, the 2 quarreled and the mother sought to evict her from the house. She argued that there was a contract between them.
However it was held that the parties had not intended to create legal relations and the mother was entitled to evict her.
However the circumstances in which a domestic or social agreement is entered into may show that the parties intended to create legal relations.
Such intentions may be collected from the words used by the parties, their conduct and the circumstances of the agreement;
1. Agreement between husband and wife
Such an agreement may be forced if the parties have manifested an intention to contract. E.g. in McGregor v McGregor, a husband and wife sued each other for assault but later resolved to withdraw the cases but live apart. The husband promised to pay a weekly sum as maintenance while the wife promised to maintain the children.
The husband was in arrears for 6 weeks and the wife sued. It was held that her action was sustainable as the parties had manifested an intention to contract. A similar holding was made in Merrit v Merrit.
2. Other Social Agreements
Such agreements may be enforced if the parties if the parties have manifested an intention to contract. In Simpkins v. Pays, the defendant owned a house where she lived with a grand daughter; the plaintiff was a paying boarder (a lodger).
The three took part in a Sunday newspaper competition. All entries were made in the defendant‟s name. However, there were no rules on payment of postage.One week‟s entry won £750.
The plaintiff claimed 1/3 of the sum. The defendant argued that this was a pastime activity not intended to create legal relations.
However the court held that the plaintiff was entitled to 1/3 of the sum as the parties had manifested an intention to contract.
A similar holding was made in Parker v. Clark.
Case law demonstrates that an agreement is legally unenforceable unless the parties to it intend such a consequence.
In addition to consensus and intention, a contract must be characterized by capacity. This is the legal ability of a party to enter into a contractual relationship. For an agreement to be enforceable as a contract the parties must have had the requisite capacity.
As a general rule, every person has a capacity to enter into any contractual relationship.
However, in practice, the law of contract restricts or limits the contractual capacity of certain classes of persons namely;
1. Infants or minors.
2. Drunken persons.
3. Persons of unsound mind.
5. Undischarged bankrupts.
1. CONTRACTUAL CAPACITY OF INFANTS OR MINORS
Under Section 2 of the Age of Majority Act1, an infant or minor is any person who has not attained the age of 18.
Contracts entered into by an infant are binding, voidable or void depending on their nature and purpose.
1. BINDING CONTRACTS
These are legally enforceable contracts; the infant can sue or be sued on them. Both parties are bound to honour their obligations.
These contracts fall into 4 categories;
a. Contracts for the Supply of “Necessaries”
Under section 4 (2) of the Sale of Goods Act necessaries mean goods suitable to the condition in life of such an infant or minor and to his actual requirement at the time of sale and delivery.
In Nash v. Inman, the defendant was an infant college student. Before proceeding to college, his father bought him all the necessary clothing material.
However, while in college, he bought additional clothing material from the plaintiff but did not pay for them and was sued.
His father gave evidence that he had bought him all the necessary clothing material. It was held that he was not liable as the goods were not necessaries when supplied.
b. Contracts for the Supply of “Other Necessaries”
These are necessaries other than those covered by Section 4 (2) of the Sale of Goods Act. E.g. Legal services, transport to and from work, lodging facilities etc.
An infant is bound by any contract for the supply of such necessaries. Under the Sale of Goods Act, whenever an infant is supplied with necessaries, he is liable to pay not the agreed price but what the court considers as reasonable.
3. Educational Contracts
An infant is bound by a contract whose purpose is to promote his education or instruction.
c. Contracts for Beneficial Service
These are beneficial contracts of service. Case law demonstrates that an infant can sue or be sued and is bound by contracts whose object is to benefit him as a person.
In Doyle v. White City Stadium, the plaintiff was a qualified infant boxer. He applied to join the
British Boxing Board and was granted a license.
One of the rules of the body empowered it to withhold payment of any price money won if a boxer was disqualified in a competition.
The plaintiff was disqualified on one occasion and the Board withheld payment. The plaintiff sued. Question was whether the plaintiff was bound by the contract between him and the Board.
It was held that he was as in substance it was intended to benefit him hence the money was irrecoverable.
A similar holding was made in Chaplin V. Leslie Fremin (Publishers) Ltd. Where the plaintiff, an infant had engaged the defendant to write a book for him. He subsequently discontinued the transaction. It was held that the contract was binding as it was intended to benefit him.
A similar holding was made in Clements v. London and North Western Railway Co.
2. VOIDABLE CONTRACTS
Certain contracts entered into by an infant are voidable i.e. the infant is entitled to repudiate the contract during infancy or within a reasonable time after attaining the age of majority.
By avoiding the contract, the infant escapes liability on it. The infant cannot be sued on the contract during infancy. These contracts confer upon the infant a long term benefit. Examples include: Partnership agreements, lease or tenancy agreement and contract for the purchase of shares.
Under Section 12 of the Partnership Act, an infant partner is not liable for debts and other liabilities of the partnership during infancy since the contract is voidable at his option.
However under Section 13 of the Act, if the infant does not avoid the contract during infancy, or within a reasonable time after attaining the age of majority, he is liable for debts and other obligations of the firm from the debt he became partner.
In Davis v. Beynon-Harris where an infant had taken up a lease but failed to repudiate the contract during infancy or within a reasonable time thereafter, it was held that he was liable under the contract.
3. VOID CONTRACTS
Under the provisions of the Infants Relief Act (1874) which applies in Kenya as a statute of general application, certain contracts entered into by infants are void. These are contracts which the law treats as nonexistent. They confer no rights and impose no obligations on the parties.
Theses contracts are;
1. All accounts stated with infants: These are debts admitted by an infant. The infant cannot be sued on such admission.
2. Contracts for the supply of goods other than necessaries.
3. Money lending contracts: An infant is not bound to repay any monies borrowed from a 3rd party as the contract is void. However if the infant repays, the amount is irrecoverable.
In Leslie Ltd. V. Sheil, the defendant, an infant borrowed £400 from the plaintiff, a money lending firm in 2 lots of £200 each and was liable to pay £475 inclusive of the interest but failed to do so and was sued.
The plaintiff argued that it was entitled to damages for misrepresentation as the defendant had fraudulently misrepresented his age.
It further argued that the defendant had received the money on its behalf. It was held that the amount was irrecoverable as the contract was void by reason of the Infants Relief Act 1874.
Since a money lending contract was void, any security given by the infant is also void and therefore unenforceable by the lending party. It was so held in Valentini v. Canali.
If an infant uses monies borrowed under a void contract to purchase necessaries, the lending party is in Equity put into the shoes of the party supplying the necessaries and can sue the infant for the recovery of the amount borrowed as was used to purchase the necessaries.
This is the principle of subrogation as was explained in In re: National Permanent Benefits
Building Society Ltd.
Question has arisen as to whether an infant can ratify contracts made during infancy after he has attained the age of majority. Any such purported ratification or adoption has no legal effect.
2. CONTRACTUAL CAPACITY OF DRUNKEN PERSONS
A contract entered by a drunken person is voidable at his option by establishing that:
1. He was too drunk to understand his acts.
2. The other party was aware of his condition.
By avoiding the contract, the person escapes liability on it. In Gore v. Gibson, the defendant was sued on a bill of exchange he had signed and endorsed. He pleaded that when he did so he was too drunk to understand what he was doing and that the plaintiff was aware of his condition.
It was held that he was not liable as the contract was voidable at his option by reason of the drunkenness.
If a contract entered into by a person when drunk is ratified by him when sober it is no longer voidable as was the case in Mathews v Baxter where the defendant had contracted to sell a house to the plaintiff. When sued he pleaded drunkenness.
However it was held that he was liable as the plaintiff proved that he had subsequently ratified the transaction while sober.
Under Section 4 (2) of the Sale of Goods Act, if a drunken person is supplied with necessaries he is liable to pay a reasonable price.
3. CONTRACTUAL CAPACITY OF PERSONS OF UNSOUND MIND
A contract entered into by a person of unsound mind is voidable at his option by establishing that:
1. He was too insane to understand his acts.
2. The other party was aware of his mental condition.
By avoiding the contract the party escapes liability on it. In Imperial Loan Co. Ltd v Stone, the defendant was sued on a promissory note he had signed. He argued that at the time, he was insane and therefore incapable of comprehending the nature or effects of his acts and that he was not liable on the promissory note as the contract was voidable by reason of insanity.
In the words of Lopes L.J. “In order to avoid a fair contract on the ground of insanity, the mental capacity of the one contracting must be known to the other contracting party. The defendant must plead and prove not merely his insanity but the plaintiff’s knowledge of that fact and unless he proves these 2 things he cannot succeed.”
If a contract entered into by a person of unsound mind is ratified by him when he is of sound mind it ceases to be voidable.
Under Section 4 (2) of the Sale of Goods Act, if a person of unsound mind is supplied with necessaries, he is liable to pay a reasonable amount.
4. CONTRACTUAL CAPACITY OF UNDISCHARGED BANKRUPTS
These are persons who have been declared bankrupt by a court of competent jurisdiction. There capacity to contract is restricted by the provisions of the Bankruptcy Act2.
5. CONTRACTUAL CAPACITY OF CORPORATIONS
These are artificial persons created by law, either by the process of registration or by statute. The capacity of the corporations to contract is defined by law e.g. a statutory corporation has capacity to enter in transactions set out in the statute as well as those reasonably incidental thereto.
Other transactions are ultra vires and therefore null and void. The contractual capacity of a registered company is defined by the object clause of the memorandum. At common law a registered company has capacity to enter into transactions set forth in the objects and those that are reasonably incidental to the attainment or pursuit of such objects.
It was so held in Ashbury Railway Carriage and Iron Co. v. Riche as well as in Attorney Generalv. Great Eastern Railway Co
Other transactions are ultra vires (beyond the powers of) the company and void. Transactions within the powers of a company are said to be intra vires a company.
An ultra vires transaction cannot be ratified and any purported ratification has no legal effect. It was so held in Ashbury’s Case.
In addition to consensus, capacity and intention, an agreement must be characterized by consideration to be enforceable as a contract. At Common Law, a simple contract is unenforceable unless supported by some consideration. Consideration is the bargain element of a contract.
It is nothing but mutuality. It has been defined as “an act or promise offered by the one partyand accepted by the other party as price for that others promise.”
In the words of Lush J. in Currie v. Misa, “a variable consideration may consist of some right, interest, profit or benefit accruing to the one party or some loss, forbearance, detriment or responsibility given, suffered or borne by the other.”
In the words of Patterson J in Thomas v. Thomas “consideration means something which is of some value in the eye of the law moving from the plaintiff. It may be some benefit to the defendant or detriment to the plaintiff but at all events it must be moving from the plaintiff.”
Consideration is whatever the promisee gives or provides to buy the promisors promises. By so doing the promisee becomes party to the contract. Consideration takes various forms. In Carllilv. Carbolic Smoke Ball Co, it took the form of detriment i.e. swallowing of the smoke balls by Mrs.Carllil. In Patel v. Hasmani, it took the form of forebearance to sue.
TYPES OF CONSIDERATIONS
Consideration may be executory or executed but must not be past. However in certain circumstance past consideration may support a contractual claim.
1. Executory Consideration
Consideration is executory where the parties exchange mutual promises. Neither of the parties has performed its part of the contract. The whole transaction is in future.
Executory consideration is good to support a contractual claim. E.g. purchase of goods on credit for future delivery.
2. Executed Consideration
Consideration is executed where a party does an act to purchase the others promise. The act may be partial or total performance of the party‟s contractual obligation. It is good consideration to support a contractual claim.
3. Past Consideration
Consideration is past where a promise is made after services have been rendered. There is no mutuality between the parties. Past consideration is generally not good to support a contractual claim.
In Roscorla v. Thomas, the plaintiff had just bought a horse from the defendant and as he was leading it away, the defendant assured him that it was a good horse free from any vice.
The statement turned out to be untrue and the plaintiff sued for damages. It was held that the defendants promise was unenforceable by the plaintiff as consideration was wholly past.
A similar holding was held in In re McArdles Case where Mrs. McArdles spent £488 improving and decorating the house they lived in at no ones request. The house belonged to Mrs. McArdles husband‟s father and was to be sold after her mother-in-law‟s death. The beneficiaries of the estate signed a document promising Mrs. McArdle £488 when the estate was distributed.
However no payment was made and Mrs. McArdle sued. It was held that the promise was unenforceable as consideration was past.
In certain circumstances, past consideration is sufficient to support a contractual claim. These are exceptions to the general rule:
1. Acknowledgement of a statute barred debt
Under the Limitation of Actions Act, Cap 32 Laws of Kenya, a debt becomes statute barred after 6 years. In such a case, the debtor is not bound to repay. However, a written acknowledgement of the debt by the debtor is enforceable by the creditor though consideration is past. It was so held in Ball v. Hasketh and Heyling v. Hasting.
2. Negotiable Instruments
One of the characteristics of negotiable instruments e.g. cheques, bills of exchange, promissory notes, share warrants e.t.c. is that past consideration is good to support any action on the instrument.
A holder of a negotiable instrument can sue on it even though he has not given consideration provided a previous holder gave some consideration.
This exception is contained in Sec 27(1) of the Bills of Exchange Act3, and was relied upon to enforce an action in Lombard Banking Co. Ltd v. Gandhi and Patel.
3. Rendering of Services on request
Where services are rendered by a party, at the express or implied request of another in circumstances that give rise to an implied promise to pay, a subsequent promise to pay for the services is enforceable.
The law takes the view that the rendering of the services and the promise to pay are an integral part of the same transaction.
In Lampleigh v. Brathwait the defendant had killed a man named Patrick. He requested the plaintiff to secure pardon for him from the king. The plaintiff exerted himself and made a number of trips to see the king and ultimately secured the pardon. The defendant promised to pay him £100 for the trouble, a promise he did not honour and was sued.
He argued that the plaintiff had not provided consideration for his promise to pay. However it was held that the promise was enforceable as it was inseparable from the request for the services. A similar holding was made in Re Casey Patents Ltd.
RULES OF CONSIDERATION
1. Mutual love and affection is not sufficient consideration
It was so held in Thomas v. Thomas. Mr. Thomas had expressly stated that if he died before his wife, she was free to use his house as long as she remains unmarried. His brothers who later became executors of his estate knew of this wish.
After his death, Mrs. Thomas remained in his house and unmarried. After the death of one of the executors, the other sought to evict Mrs. Thomas from the house. She sued the late husband’s estate. It was held that the husbands promise was enforceable as she had provided consideration by way of the £1 she paid for every year she lived in the house.
The love she had for the late husband was not sufficient consideration but the £1 she paid every year was..
2. Consideration must be legal
The act or promise offered by the promise must be lawful as illegal consideration invalidates the contract.
3. Consideration must not be past
As a general rule, past consideration is not good to support a contractual claim as exemplified by the decisions in Re McArdles case and Roscorla v. Thomas.
However, in certain circumstances, past consideration is sufficient to support a contractual claim, as indicated above.
4. Consideration must be real
This rule means that consideration must be something of value in the eyes of the law. It means that consideration must be sufficient though it need not be adequate.
This rule means that as long as something valuable in law passes, the promise is enforceable. It means that the law does not concern itself with the economics of a transaction.
It means that the courts of law do not exist to correct bad bargains. In Thomas v. Thomas, the £1
Mrs. Thomas paid per year was sufficient consideration.
However if the consideration is too low in comparison and there is evidence of a mistake, misrepresentation, duress or undue influence, the courts may intervene.
5. Consideration must flow from the plaintiff/ promise
This rule means that the person to whom the promise is made provides consideration and by so doing there is a bargain between the parties or mutuality.
By providing consideration, the promise becomes party to the transaction. In Thomas v. Thomas,
Patterson J was emphatic that “consideration must at all times flow from the plaintiff.”
The rule that consideration must flow from the plaintiff is referred to as The Doctrine of Privity of Contracts.
THE DOCTRINE OF PRIVITY OF CONTRACTS
This doctrine is to the effect that only a person who is party to a contract can sue or be sud on it. It means that only a person who has provided consideration to a promise can sue or be sued on it.
It means that a stranger to consideration cannot sue or be sued even if the contract was intended to benefit him. It was so held in Scruttons Ltd v. Midland Sillicones Ltd. In Price Easton, X agreed to pay the plaintiff a sum of money if Y did some work for him. Y rendered the services to X but X did not honour the promise to pay.
The plaintiff sued to enforce the promise. It was held that the promise was unenforceable as the plaintiff was not a party to the transaction. He had provided no consideration.
A similar holding was made in Dunlop v. Selfridge as well as in Tweddle v. Atkinson.
However in certain circumstances, persons who are not party to a contract or who have not provided consideration may sue or be sued on it.
These are exceptions to the Doctrine of Privity of Contracts
In an agency relationship, the agent contracts on behalf of the principal. The principal is not directly involved in the transaction. However the principal may sue or be sued on a contract entered into by the agent. This exception is more apparent than real as in law the agent represents the principal.
ii) Legal Assignment
Under the provisions of the ITPA4 if a creditor assigns his debt to another person in a legal assignment the assignee becomes entitled to sue the debtor as if he were the original creditor.
iii) Negotiable Instruments
A holder of a negotiable instrument can sue on it in its own name not withstanding the absence of consideration provided a previous holder of the instrument gave some consideration.
This is an equitable relationship whereby a party expressly impliedly or constructively holds property on behalf of another known as the beneficiary. In certain circumstances, the beneficiary can sue or be sued under a trust.
v) Third Party Insurance
Under the provisions of the Insurance (Motor Vehicles Third Party Risks) Act5, , victims of motor vehicle accidents are entitled to compensation by Insurance companies for injuries sustained from the use of motor vehicles on the road.
However the insurer is only liable if the motor vehicle was in the hands of the insured or some authorized driver.
If the authorized driver pays the amount due to the victim for the injury, such amount is recoverable from the insurer but through the insured as was the case in Kayanja v. NewIndia Insurance Co. Ltd.
vi) Restrictive Covenants (Contracts running with land)
In certain circumstances, certain rights and liabilities attached to land are enforceable by or against subsequent holders of the land. This is particularly the case in the law of leases.
6. Consideration must be something in excess of a public duty owed by the plaintiff
This rule means that performance by the plaintiff of a public duty owed by him is not sufficient consideration for a promise to pay.
In Collins v. Godefroy, the defendant was involved in a civil case and the plaintiff had given evidence in the matter but was reluctant to do so in future. The defendant promised him 6 pounds if he continued giving evidence which he did.
The defendant did not honour his promise and was sued. Question was whether the plaintiff had provided consideration for the defendants promise to pay.
It was held that the promise was unenforceable as the plaintiff had not provided consideration but had merely performed a public duty.
However anything in excess of a public duty amounts to consideration. In Glassbrook Brothersv. Glamorgan County Council, the defendant owned a mine and at the material time the workerswere on strike. The defendant requested the plaintiff to provide a stationary guard to protect the mine and promised to pay for the services. The plaintiffs who are not bound to provide a stationary guard provided the service but were not paid.
In an action to enforce the promise, it was held that the plaintiffs were entitled to payment as they had done more than the duty required and had therefore provided consideration.
7. Consideration must be something in excess of an existing contractual obligation
This rule means that performance by the plaintiff of an existing contractual obligation is not sufficient consideration for a promise. In Stilk v. Myrik, the defendant who was a ship captain entered into a contract with his crew members to assist him on a journey from Britain to the Baltic Sea and back. In the course of the journey, 2 sailors deserted.
The captain promised to share their wages between the remaining crew members a promise he did not honour and was sued. It was held that the crew members were not entitled to the extra pay as they had not provided consideration.
They had merely performed an existing contractual obligation. However, doing something in excess of a contractual obligation constitutes consideration.
In Hartley v. Ponsonby where in the course of a journey, a substantial number of crew members deserted and a promise for extra pay was made, it was held that they were entitled to the pay as they had done more than a contractual obligation.
The willingness to expose themselves to danger for longer hours constituted consideration for the promise.
8. Payment of a lesser sum on the day in satisfaction of a larger sum is not sufficient consideration for the creditors promise to accept such sum in full settlement for the debt.
This is referred as the “Rule inPinnels Case (1602)”. Cole owed Pinnel 8 pounds payable on 11th November 1600. However on 1st October 1600, Pinnel requested Cole to pay 5 pounds which he agreed to accept in full settlement of the debt. Subsequently, Pinnel sued Cole for the balance. The case was decided on a technical point of pleading and Cole was held liable for the balance.
This rule was applied in Foakes v. Beer (1884). However in certain circumstances, payment of a smaller sum extinguishes the entire debt.
These are exceptions to the rule in Pinnel’s Case:
1. If the lesser sum is paid in advance and the creditor accepts the same in full settlement of the debt.
2. If the lesser sum is paid in the form of an object which the creditor accepts in settlement thereof. In Pinnel’s Case, Brian C.J. observed, “but the gift of a horse, hawk or robe, is sufficient consideration.
3. If the lesser sum is paid in addition to an object which the creditor accepts.
4. If the lesser sum is at the creditor’s request paid at a different place.
5. Where the lesser sum is paid in a different currency and the creditor accepts the same in full settlement thereof.
6. Where the lesser sum is paid by a third party. In Welby v. Drake, the defendant owed the plaintiff 18 pounds and was unable to pay. The defendant‟s father paid the plaintiff 9 pounds which he accepted in full settlement of the debt but subsequently sued for the balance. It was held that the promise was enforceable as it was made to a 3rd party.
7. If a debtor enters into an arrangement with his creditors to compound his debts, whereby he promises to pay part of the amount due to each of the creditors who in turn promise mot to sue the debtor or insist on full payment, the lesser sum paid by the debtor extinguishes the entire debt.
The mutual promises by the parties constitute consideration.
DOCTRINE OF PROMISSORY OR EQUITABLE ESTOPPEL
This doctrine was developed by equity to mitigate the harshness of the common law rule of consideration. It is an equitable intervention which modifies the rule of consideration.
The Doctrine was explained by Lord Denning in Combe v. Combe. It is to the effect that where parties have a legal relationship and one of them makes a new promise or representation intended to affect their legal relations and to be relied upon by the other, once the other has relied upon it and changed his legal position, the other party cannot be heard to say that their legal relationship was different. The party is estopped from denying its promise.
For the doctrine of estoppel to apply the following conditions are necessary:
1. A legal relationship between the parties.
2. A new promise or representation in intended to be relied upon.
3. Reliance upon the representation.
4. Change in legal position as a result of the reliance.
5. It would be unfair not to estop the maker of the representation.
The Doctrine of Promissory Estoppel is often referred to as “The Rule in the High Trees Case.”
In Central London Property Trust v. High Trees House Ltd, the plaintiff owned a block of flats which it leased to the defendant for 99 years at 2500 pounds per year. After the outbreak of the 2nd world war, it became clear that the defendant was not in a position to pay the agreed rent as most of the flats were unoccupied. The plaintiff promised to accept half of the rent as long as the war continued.
By the end of 1945, all the flats were occupied. The plaintiff sued for the defendant to be compelled to pay:
1. The full rent.
2. The arrears.
The defendant argued that it was inequitable (unfair) for the plaintiff to claim the arrears. It was held that whereas it was fair for the defendant to pay the full rent, it was unfair to claim the arrears as the plaintiff had made a promise which the defendant had reliede upon and changed its legal position.
The plaintiff was estopped from insisting on the arrears.
The doctrine of equitable estoppel applies in East Africa
In Century Automobile v. Hutchings Biemer Ltd, the defendant took a lease of the plaintiff‟s premises which was terminable by a 3 month notice of either party. The defendant intended to make alterations to the building but feared doing so only for the lease to be terminated. The plaintiff promised not to terminate the lease in 4 years time.
As a consequence, the defendant spent 800 pounds on the alterations but 8 months later the defendant received the plaintiff‟s notice of termination but refused to honour it and was sued.
The defendant pleaded estoppel. The plaintiff was estopped from evicting the defendant as it had made a promise which the defendant had relied upon and changed its legal position.
A similar holding was made in Commissioner of Lands v. Hussein.
EFFECTS OF ESTOPPEL
The Doctrine of Promissory estoppel estoppel is a modification of the Common Law rule of consideration in that it enables a person who has not provided consideration to a promise to enforce it if he has relied upon it and changed his legal position.
It is argued that the principal weakness of the Doctrine of Promissory Estoppel is that it is defensive and not offensive. It can only be relied upon by the defendant as a defence. However, the so called Doctrine of Proprietary Estoppel which is based on ownership can be used both as a shield and as a sword. Courts however have observed that there is no distinction between promissory and proprietary estoppel.
TERMS / CONTENTS OF A CONTRACT
Parties negotiating a contract make many statements some of which are intended to be terms while the others are mere representations. Whereas terms form the content of the contract, representations are mere inducements and if false they are referred to as misrepresentations and may affect the contract.
Whether a statement was intended to be a term or representation is a question of fact and courts are guided by the following rules or presumptions in so ascertaining:
1. Time Gap: If the duration between making the statement and the conclusion of thecontract is long, it is presumed to be a representation and if short it is deemed to be a term.
2. Guarantee: If a party to the negotiations appears to guarantee its statements, they arepresumed to be terms.
3. Special Knowledge: If either of the parties has special knowledge in relation to thesubject matter of the contract, its statements are presumed to be terms. In Oscar Chess
Ltd v. Williams, Williams sold a 2nd hand car to the plaintiff. The registration book showedthat it was a 1948 model while in fact it was a 1939 car. Williams had no means of ascertaining the truth. The plaintiff sued in damages for the untrue statement. However it was held that since the statement was innocently misrepresented, the plaintiff had no action in damages.
However in Dick Bently Productions Ltd v. Harold Smith motors Ltd, the plaintiff intended to buy a motor vehicle from the defendant and was informed that the vehicle in question had had a replacement engine and gearbox and had only done 20,000 miles. In fact nothing had been replaced and it had done over 100,000 miles.
The plaintiff sued in damages for the untrue statement. It was held that the untrue statement was a term of the contract as the defendant was a motor dealer and was therefore liable in damages for the misrepresentation.
Terms of a contract may be:
1. Express or
1. EXPRESS TERMS
These are the oral and written terms agreed upon by the parties. Written terms prevail over oral terms. If contractual terms are written, oral evidence is generally not admissible to vary or explain the written terms.
However, such evidence is admissible to prove that:
1. The contract was subject to a particular trade usage or custom.
2. The parties had not incorporated all the terms into the document.
3. The parties had agreed to suspend the agreement until some event occurred
If handwritten, printed and typed terms contradict, the handwritten terms prevail as they are a
better manifestation of the parties‟ intentions. It was so held in Glynn v. Margetson.
2. IMPLIED TERMS
These are terms which though not agreed to by the parties, are an integral part of the contract. Theses terms may be implied by statutes or by a court of law.
A. Terms implied By Statutes
Certain statutes imply terms in contracts entered into pursuant to their provisions. These terms become part of the contract.
Terms implied in Sale of Goods contracts by the Sale of Goods Act
The Sale of Goods Act implies both conditions and warranties in contracts of Sale of goods unless a different intention appears.
a) Right to sell
Under Section 4 (a) of the Act there is an implied condition that the seller of goods shall have the right to sell when property in the goods is to pass.
b) Correspond to description
Under Section 5 of the Act, in a sale by description there is an implied condition that the goods shall correspond to the description.
c) Fitness for purpose
Under Section 16(a) of the Act, where the buyer expressly or by implication makes known to the seller the particular purpose for which the goods are required so as to rely on the sellers skill and judgement, there is an implied condition that the goods shall be reasonably fit for that purpose.
d) Merchantable Quality
Under Section 16 (b) of the Act, where goods are bought by description from a person who deals in such goods in the ordinary course of business whether a seller or manufacturer, there is an implied condition that the goods will be of merchantable quality.
e) Sale by Sample
Under Section 17(1) of the Act, in a sale by sample, the following conditions are implied:
1) The bulk shall correspond with the sample in quality.
2) The buyer shall be afforded a reasonable opportunity to compare the bulk with the sample.
3) That the goods shall be free from any defects rendering them unmerchantable.
1) Quiet Possession
Under Section 14 (b) of the Act there is an implied warranty that the buyer shall have and enjoy quiet possession of the goods.
2) Free from Charge or encumbrance
Under Section 14 (c) of the Act there is an implied warranty that the goods shall be free from any charge or encumbrance not made known to the buyer when the contract was made.
B. Terms Implied By Courts of Law
Courts of law reluctantly imply terms in contracts as it is the duty of the parties to agree as to what the contractual terms shall be.
However in certain circumstances, courts are called upon to imply terms in contracts and do so for 2 reasons:
a) To give effect to the intentions of the parties.
b) To facilitate commercial transactions or give business efficiency. Courts of law imply terms in contracts on the basis of:
1. The reasonable by stander test.
2. Trade usages and customs.
1. Reasonable By-Stander Test
Under this test a court will imply into a contract any term which a reasonable person overhearing the contract being made would have implied.
In Hassan Ali Issa v. Jeraj Produce Shop, the plaintiff repaired the defendant‟s motor cycle. However, the defendant did not collect the repaired item until after 1 year. The plaintiff demanded repair and storage charges.
The defendant refused to pay storage charges on the ground that it had not been agreed. The plaintiff threatened to sue the defendant. As a consequence, the defendant wrote a cheque for both amounts but it was dishonoured. The plaintiff sued.
It was held that the defendant was liable tom pay storage charges. The court implied into the contract a term that if a repaired item is not collected within a reasonable time, The party undertaking storage is entitled to reasonable storage charges.
In the Moorcock Case, the parties had agreed that the plaintiffs ship could unload at the defendant‟s jetty situated upstream the River Thames. During low tide as the ship sailed towards the jetty it grounded and was damaged. The jetty owner was held liable for damage.
The court implied the term that the passage to the jetty was reasonably safe for the ship.
2. Trade Usages & Customs
A court of law may imply a trade usage or custom into a contract if it is proved that the transaction was subject to it. The party relying on the trade custom must prove that:
1. The custom exists.
2. Is certain.
3. Is reasonable.
4. Is known to the parties.
5. The parties had not exempted the custom from their transaction. It was so held in HalilalShah and Champion Shah v. Standard Bank Co. Ltd.
In Fluery and King v. Mohamed Wali & Another, the plaintiff bought 1000 handkerchiefs from the defendants and the same were delivered in batches of 30. The plaintiff took delivery but sued the defendant for a reduction in the purchase price. It was proved that in Zanzibar there was a trade usage that handkerchiefs bought in bulk were supplied in dozens.
The court implied the custom into the contract and held that the plaintiff was entitled to the reduction in the price as he had to unpack and repack the pieces in dozens.
Contractual terms may be conditions, warranties or innominate terms.
This is a term of major stipulation in a contract. It runs to the root of the contract. It is part of the central theme of the contract. If a condition is breached, it entitles the innocent party to treat the contract as repudiated and to sue in damages as was the case in Poussard v. Spiers andPond. A singer was engaged to play the leading role in a French Opera from the beginning of theseason but owing to illness she was unable to take up her role during the first 1 week forcing the organizers to engage a substitute and consequently rejected the singer‟s services who sued.
It was held that the organizers were entitled to treat the contract as repudiated as the singer had broken a major term of the contract.
A condition may be express or implied in a contract.
This is a minor term of a contract or a term of minor stipulation. It is a peripheral or collateral term that does not run into the root of the contract. If breached, it entitles the innocent party to sue in damages only as the contract remains enforceable and both parties are bound to honour theirpart of the bargain.
In Bettini v. Gye, an actress was engaged to perform in concerts and theatres from the beginning of performances. However she additionally agreed to appear for 6 days in advance for rehearsal but appeared for only 3 days.
The organizers purported to treat the contract as repudiated. It was held that the contract was subsisting as the agreement to appear for rehearsals was a collateral term.
A similar holding was made in Kampala General agency Ltd. V. Modys (EA) Ltd where the parties had agreed to buy a large quantity of cotton deliverable at Saroti.
However the seller took the cotton to another town named Aloi where the buyer had a cotton ginnery. The buyer refused to take delivery on the ground that the misdelivery was a breach of a condition. However, it was held that it was a breach of a warranty and the buyer was only entitled to damages.
3. INNOMINATE TERMS
These are terms of a contract categorized as neither conditions nor warranties. The breach of such terms may be attended by trivial or grave consequences.
The remedy available depends on the nature, effect and consequence of the breach.
It was so held in Hong Kong Fur Shipping Co. v Kawasaki Kisen Kaisha where a ship was chartered for 24 months but was unavailable for use during the 1st 20 weeks. The charterer sued alleging that the unavailability of the vessel was breach of a condition. However it was held not to be.
EXEMPTION OR EXCLUSION CLAUSES
(Limiting or Excluding clauses)
The theory of freedom of contract assumes that parties are free to contract with one another and can protect their own interests.
It assumes parity in contractual bargains which is not necessarily the case. The stronger party may insert terms favourable to it. This is the genesis of exemption clauses.
An exemption clause is a clause inserted in a contract by the stronger party exempting, itself from liability or limiting the extent of any liability arising under the contract.
These clauses are common in standard form contracts e.g. conveyance of goods, hire purchase agreements contracts of insurance etc.
These clauses are justified on the theory of freedom of contract.
For an exemption clause to be given effect, the court must be satisfied that it was an integral part of the contract.
It must have been incorporated into the contract. In L’estrange V. Graucob (1934) the plaintiff bought an automatic cigarette vending machine from the defendant.
The terms of the agreement were written in a document entitled sale agreement.
Some of the clauses were in a very small print and the plaintiff signed the document without reading.
One clause exempted the defendant from liability if the machine turned out to be defective.
It worked for only a few days. The plaintiff sued and the defendant relied on the exemption clause in the agreement.
It was held that the defendant was not liable as the document contained the terms of the contract and the plaintiff had signed the same and was therefore bound.
INCORPORATION OF EXEMPTION CLAUSES IN CONTRACTS
An exemption clause may be made part of a contract: –
a. By signature
b. By notice
1. INCORPORATION BY SIGNATURE
If a document signed by the parties to a contract contains an exemption clause, the court must be satisfied that: –
a. The document contained the terms of the contract between the parties
b. It was signed by the party affected voluntarily
Signature prima facie means acceptance. A party cannot after signing a document argue that it did not read, understand or that the print was too small. It was so held in L’Estrange V. Graucob.
However if there is evidence that the signature was procured by fraud or misrepresentation of the contents of the document the signature is voidable at the option of the innocent party.
As was the case of Curtis v. Chemical Cleaning & Dyeing Co. the plaintiff took a wedding dress to the defendant shop for cleaning and was given a document to sign. She requested the shop assistant to explain to her the contents and was informed that the document exempted the company from liability for any damage caused to the decorations of the dress.
She signed the document without reading. Her dress was damaged and stained. She sued the company which relied on the exemption clause which excluded it from liability for any damage.
The plaintiff pleaded that the contents of the document had been misrepresented to her and hence the signature, it was held that the signature was voidable at her option and the company was liable.
2. INCORPORATION BY NOTICE
What the exemption clause is not contained in a document requiring any signature, the court must be satisfied that the party affected by the clause was aware of its existence when the contract was entered into.
As was the case in Parker v. South Eastern Railway Co. The plaintiff had left in luggage at a railway station luggage office and was given a ticket containing the words “see back”.
At the back was a clause exempting the company from liability for lost luggage.
The plaintiff‟s luggage was lost and he sued. The company relied on the exemption clause.
It was held that the company was not liable as it had brought the exemption clause to the plaintiff‟s notice who was therefore bound.
However, a belated notice of an exemption clause has no effect on the contract as it is not part of it. In Olley v. Malborough Court the plaintiff had booked in a hotel and paid for a weeks board, she was given a key to her room where there was a notice exempting the hotel from liability for lost items. The notice was behind the door.
Guests were requested to deposit valuable with the manageress of the hotel. During her absence a stranger opened the room and stole her expensive clothing. She sued. The hotel relied on the exemption clause in the room.
It was held that the hotel was liable as the exemption clause was brought to the plaintiffs notice after the contract had been concluded.
A similar holding was made in Lougher v. Kenya Safari Lodges and Hotels Ltd. Where the plaintiff who was a guest in a hotel was injured near the swimming pool next to which was a notice exempting the hotel from liability for injuries sustained by persons near the swimming pool.
It was held that the hotel was liable as the exemption clause was not part of the contract.
It should be noted that at common law exemption clauses contained in tickets or receipts issued offer payment of a sum of money are not deemed to be part of the contract as the ticket or receipts is evidence of payment and not the basis of the contract.
In Thomton v. Shoehane Parking Co. Ltd. The defendant operated an automated parking lot. Motorists had to insert coins to obtain a receipt so as to access the parking lot.
Behind the receipt was a notice exempting the defendant from liability for injuries sustained within the parking lot.
The plaintiff who had accessed the parking lot in the ordinary manner was injured and sued.
The defendant relied on the exemption clause on the ticket. However it was held that the defendant was liable as the clause had not been incorporated into the contract.
A similar holding was made in the case of Chappletton v. Barry UDC
RULES RELATING TO ENFORCEMENT OF EXCLUSION /EXEMPTION CLAUSES
For a court of law to give effect or consider the effect of an exemption clause it must be satisfied that the exemption clause was an integral part of the contract. Since exemption clauses are generally unfair to the weaker party, Courts have evolved rules which to some extent ensure that the unfairness is mitigated.
1. An exemption clause must have been incorporated into the contract either by notice or signature. The party affected must have been aware of the exemption clause when the contract was entered into.
2. If contractual terms are contained in a document, it must be evidence that the document was the basis of the contract and was signed by the parties voluntarily as was the case of L’Estrange v. Graucob.
3. For an exemption clause to be given effect it must be clear and definition free from vagueness or ambiguity. In the event of any ambiguity the clause is interpreted contraproferentes. This is the Contra Proferentem Ruleof interpretation under whichclauses are interpreted restrictively against the party relying on them. As was the case in Omar Sale v. Besse and Co. Ltd. Where in a contract of sales of goods, the seller exempted itself from liability for breach of „warranties‟. It breached an implied condition in the Sale of Goods Act.
A question was whether the term warranties included conditions. It was held that since the term warranties were vague. It had to be interpreted restrictively against the seller and therefore did not include conditions. Hence the seller was liable.
4. As a general rule, only person‟s privy to a contract can take advantage of an exemption clause in the contract. It was so held in Scruttons Ltd. v. Midland Silicones ltd.
In Halal Shipping Co. v. SBA and Another, a contract of carriage of goods by sea exempted the carrier from liability for any damage to the good in the course of transit.
The good were damaged in the course of unloading from the ship and the plaintiff sued. The carrier relied on the exemption clause and escaped liability. The unloading company purported to rely on the same clause. It was held that it could not do so as it was not party to that contract and was therefore liable.
5. A court of law would generally not give an exemption clause effect if doing so enable the party evade what amounts to be the fundamental obligation of the contract or a fundamental breach. This rule is based on the premise that every contract has a fundamental obligation to be discharged and a party must not use an exemption clause to evade such obligation.
In Karsales (Harrow) Ltd v. Wallis the defendant inspected a vehicle and decided to take it on Hire Purchase terms. To facilitate the transaction, the vehicle was sold to the plaintiff for hiring to the defendant. The defendant completed the Hire purchase application form and paid a deposit. The form contained a clause to the effect that “no condition or warranty that the vehicle is roadworthy or fit for any purpose is implied herein”.
One day, the defendant saw a vehicle outside his house which resembled the vehicle in question. However on scrutiny he discovered it was a mere shell in that the cylinder head was broken, all valves were burnt and 2 pistons were broken. The vehicle could not move. The defendant refused to take delivery or pay installments and was sued. He pleaded the condition of the vehicle. The plaintiff relied on the clause exempting it from liability. It was held that though the exemption clause was part of the contract. It could not be given effect as to do so would have enabled the plaintiff evade a fundamental obligation of the contract, as it had contracted to sell a vehicle. But exempted itself from liability if the subject matter turned out not to be a vehicle at all.
The party arguing that a fundamental breach has been committed must prove it and must seek judicial redress within a reasonable time.
VITIATING ELEMENTS (FACTORS AFFECTING CONTRACTS)
These are circumstances which interfere with the enforceability of a contract. They have a negative effect on contracts.
They may render a contract void or avoidable. A void contract is unenforceable while avoidable contract is enforceable unless avoided.
These factors include: –
4. Undue influence
This is a false representation. It is a false statement made by a party to induce another to enter into a contractual relationship.
It renders the contract avoidable at the option of the innocent party. However for the innocent party to avoid the contract, it must be proved that: –
1. The statement in question was false in a natural particular i.e. it was untrue in whatever it referred to.
2. The statement was more than a mere puff or sales talk. Whether a statement is a puff or a misrepresentation depends on what a reasonable person could deem it to be.
3. The statement was one of fact not opinion. As a general rule opinion does not amount to
misrepresentation. It was so held in Edington v. Fitzmaurice. However an opinion may amount to misrepresentation if: –
• The maker does not honestly hold that opinion
• The opinion purports to be based on certain facts within the maker‟s knowledge but whose truthfulness he does not verify.
4. The false statement was intended to be relied upon by the representer (recipient).
5. The false statement was in fact made by the other party to the contract. As a general rule, omission, silence or non-disclosure does not amount to misrepresentation. However it may: –
a. In contracts of utmost good faith e.g. insurance
b. In confidential relationships
c. Where disclosure is a statutory requirement
d. Where the statement made is half true
e. If the statement was true when made but turns false due to changes in circumstances before the contract is concluded but the maker does not disclose its falsity as was the case in With v. O’flanagan.
6. The false statement influenced the party‟s decision to enter into the contract. The party must show that the false statement was made before or when the contract was concluded. However the false statement need not have been the only factor the party has considered.
In Andrews v. Mockford; where the plaintiff had relied on untrue statement in a company‟s prospectus, issued by the defendants it was held that the defendants were liable in damages for the statements as the plaintiff had relied on them.
7. The false statement was innocently, fraudulently or negligently made.
A) INNOCENT MISREPRESENTATION
A statement is deemed to be innocently misrepresented if the maker honestly believed in its truth though it was false and had no means of ascertaining that it was false as was the case in OscarChess v. Williams where the defendant had no means of ascertaining that the year of registrationof the vehicle was incorrect.
It Alkerhielm v. De Mare where the defendants who were directors of a company issued a prospectus stating that 1/3 of the company shares had been taken up in Denmark which was not true at the time.
It was held that the shares would be taken up in Denmark. A similar holding was made in Derryv. Peek.
If innocent misrepresentation is proved, the innocent party may either:-
1. Apply for rescission of the contract
2. Sue for indemnity for any direct financial loss occasioned by the representation as was the case in Whittington v. Seale-Hayne where the defendant had innocently misrepresented the sanitary condition and habitation of his premises to the plaintiff who as a consequence took a lease to carry on the business of poultry breeding. The premises were not in a sanitary condition and mere unfit for human habitation. Some of the defendant‟s poultry died while others lost value this farm manager was taken ill and the premises were declared unfit for habitation. The defendant spent money putting it in a habitable condition, and paid outstanding rates. It was held that we could only recover the direct financial loss suffered.
B) FRAUDULENT MISREPRESENTATION
A statement is deemed to be fraudulently misrepresented if the maker:
a) Has knowledge that it is false
b) Makes it carelessly and recklessly
c) Does not believe in its truth
This test of fraud was formulated in Derry v. Peek. In Andrew v. Mockford where the defendants had issued a prospectus containing untrue statements and the plaintiff applied for 50 shares and was allowed the same but subsequently sued the defendants in damages for fraudulent misrepresentation. It was held that the defendants were liable as they were aware of the falsity of the statements
A similar holding was made in Bartholomew v. Petronilla.
Remedies for fraudulent misrepresentation are either: –
i. Action for rescission of contract.
ii. Damages for the fort of deceit.
C) NEGLIGENT MISREPRESENTATION
A statement is deemed to be negligently misrepresented if the maker has both means of capacity of ascertaining its falsity but fails to do so.
The maker is deemed negligent as a reasonable person in such circumstances would have so ascertained.
However, for negligent misrepresentation to be relied upon, it must be proved that: –
1. There was a special relationship between the maker and recipient of the statements hence the maker owed the recipient a legal duty of care.
It was so held in Hedley Byrene and Co. ltd. V. Heller and Partners Ltd. A customer of the defendant bank approached the plaintiff bank for some guarantees. The plaintiff bank wrote to the defendant seeking to show the credit worthiness of the defendant customers.
The defendant bank in 2 letters written on a „without responsibility basis‟ confirmed that their customer was credit worthy.
The plaintiff extended the guarantee but due to the customer’s uncreditworthiness, the plaintiff suffered loss of £19,000.
The plaintiff sued. It was held that though the defendant bank was negligent it was not liable as the information had been given on a „without prejudice / responsibility basis”.
2. That the party suffered loss of a financial nature.
In Kirimu Estate (UG) Ltd. v. K.G. Korde the plaintiff company instructed the defendant (a lawyer) to value a piece of land for it.
The defendant gave a figure without the assistance of a proper valuation of the estate. The figure was far above the market value and the company sued in damages for negligent misrepresentation.
It was held that the defendant was liable to pay the difference in value by reason of negligence.
There are two types of mistakes viz:
– Mistake of law
– Mistake of fact
As a general rule a mistake of law does not affect a contract however, a mistake of foreign law may affect a contract. Mistakes of facts affected contractual relationships.
A mistake is said to be misapprehension of a fact or factual situation. It is an erroneous assumption.
Mistake of fact that effect contracts are generally referred to as operative mistakes and the law recognizes various types of operative mistakes:
d) Mistakenly signed documents
e) Mistake as to quality of subject matter
1. COMMON MISTAKE
This is a mistake as to the existence or ownership of the subject matter. Both parties make the same mistakes. Each party understands the others intention but both are mistaken about some underlying fundamental fact. Common mistake rendered void in two circumstances:
Cases of Res Exinta: These are circumstances in which parties about the subject matter.This circumstance is contained in sec 8 of the sale of goods Act which provides where there is a contract for the sale of specific goods which without the seller‟s knowledge have perished the contract is void.
In Couturier V. Hastle the parties entered into a contract for the sale of a large quantity of corn which at the time was supposed to be on transit to Britain from Greece but unknown to the parties the ship captain had sold the corn in Tunisia due to overheating and fermentation.
It was held that the buyer was not liable to pay the price as the contract was void for common mistake as the subject matter did not exist.
A similar holding was made in Lessie Anderson V. Vallabdos Khalidas Company where parties had contracted to buy and sell a quality of gunny bags but unknown to them the bags had been destroyed by fir.
It was held that the contract was void for common mistake.
Case of Res Sua: These are circumstances in which parties are mistaken about the ownershipof the subject matter. The party purporting to buy is the legal owner but both are unaware of the fact. The purported seller has no title to pass hence the purported contract is void. It was so held in Bingham V. Bingham.
2. MUTUAL MISTAKE
This is a mistake to the subject matter of contract. It arises when parties misunderstand each other or at cross purposes. No agreement arises between them for lack of consensus ad idem.
However, not very misunderstanding constitutes a mutual mistake; it depends on what a reasonable person would deem the circumstances to be.
In Raffle V. Wichelhause the parties enter in into a contract for the sell of cotton to be shipped to the U.K. on board the peerless from the port of Bombay. Unknown to the parties there were two ships by the name peerless at the port of Bombay. One sailed in October and the other in December.
While the buyer meant the October ship the seller referred to the December one. The cotton was shipped by the December vessel and the buyer refused to take delivery.
It was held that he was not bound as the contract was void for mutual mistake.
3. UNILATERAL MISTAKE
This is a mistake as to the identity of one of the parties to the contract. Only one party is mistaken and the mistake is induced by the other party.
Unilateral mistake arises where a fraudulent person misrepresent his identity to another so as to obtain goods on credit or other favourable terms which he then sells to a bona fide 3rd party who takes without notice of the fraud.
The dispute is usually between the original owner of the goods and the bonafide purchaser.
The original owner is entitled to the goods or their value by establishing that the contract between him and the fraudulent person was void for unilateral mistake.
The party must prove that: –
i. It dealt with a person other than the one it intended to deal with.
ii. The person it dealt with was aware of that fact.
iii. The identity of the person, the party intended to deal with was fundamental to the contract.
By proving these facts the party establishes that the contract was void.
In Cundy v. Lindsay and Co. Ltd. A fraudulent person known as Blenkarn ordered goods from Lindsay and Co. Ltd his signature resembled that of a company named Blenkiron and Co. Lindsay and Co. had heard of Blenkinron and Co but had not dealt with them. Blenkarn had quoted an address on the same street as Blenkiron and Co. Thinking that they were dealing with Blenkiron and Co. Lindsay and Co. dispatched the goods to the address. Blenkarn took delivery and sold them to Cundy. Lindsay and Co. sued Cundy in damagers of conversion. It was held that they were entitled to damages as Cundy had no title to the goods like Blenkarn before him as the contract was void.
A similar holding was made in Ingram and other v. Little where three sisters advertised the sale of a vehicle.
A fraudulent person introducing himself as Mr. Hutchinson for offered to take it for £717 but paid by cheque which the sisters initially refused.
He introduced himself to P.G.M Hutchinson and gave an address which one of the sisters confirmed with a local post office.
They accepted the cheque which was subsequently dishonoured by which time the car had been sold to the defendant.
The plaintiffs sued the defendant for the car. It was held that they were entitled to it as the contract between them and the fraudulent person was void for unilateral mistake.
This decision contrasts with that in Phillips v. Brooks Ltd. Where a fraudulent person known as North entered Phillips shop and selected goods valued at £3,000 including a ring.
He offered to pay by cheque which Phillips refused. He then introduced himself as Sir George
Bullough and gave a London address which Phillip confirmed with the directory.
Having satisfied himself, Phillips let Mr. North have the ring in return for the cheque which was dishonoured by which time the ring had been pledged with Brooks Ltd for a loan. Phillips sued for the return of the ring. It was held that he was not entitled to it as there was no mistake.
The court was of the view that he had dealt with the person he intended to deal with.
4. DOCUMENTS MISTAKENLY SIGNED
This is a mistake as to the nature of the contract; it arises when a party to a contract signs the wrong document.
Such a mistake does not render the contract void but avoidable at the option of the party.
To avoid the contract, the party must prove that: –
a. The document signed was fundamentally different from the one the party thought it was signing.
b. The party was neither careless nor negligent when it signed the document.
By proving these facts, the party establishes the plea of non-est factum which literally means this is not my deed. Unless these facts are proved, the contract cannot be avoided as was the case in Gallie V.Lee and Anor.
5. MISTAKE AS TO QUALITY OF SUBJECT MATTER
This mistake arises when one of the parties to the contract is mistaken about the quality of the subject matter of the contract.
Such a mistake renders the contract voidable at the option of the innocent party.
At common law duress means actual violence or threats thereof.
It exists where a contractual relationship is procured by actual violence on the person or threats thereof.
The party is compelled or coerced to contract. For the most part, duress consists of threats.
Duress was developed by the common law with a very narrow scope. It renders a contract voidable at the option of the innocent party.
For the contract to be avoided, the innocent party must prove that:-
The threat was intended to cause fear, injury or loss of life
The threat was directed to his person or body as opposed to his property. It was so held in Altee v. Backhouse. A threat directed at the body of a member of the party‟s household amounts to duress
The threat was illegal e.g. a threat to sue, prosecute or cause imprisonment for no reasonable cause. A threat to enforce once legal rights does not amount to duress. It was so held in Hassan Ali Issa v. Jeraj Produce Shop where the defendant had alleged that the cheque had been written under duress in that the plaintiff had threatened to sue if repair and storage charges were not paid. It was held that the threat did not amount to duress.
In Friedberg Seelay v. Klass the defendants gained access to the plaintiff‟s house and threatened not to leave unless she sold her jewels to them.
4. UNDUE INFLUENCE
It is said to exist where a party dominates the other persons will thereby inhibiting its exercise of an independent judgement on the contract.
One party thus exercises overwhelming influence over the other. Undue influence was developed by equity with a fairly wide scope.
It renders a contract voidable at the option of the innocent party. Undue influence renders a contract voidable in the following circumstances;
1. Where parties have a special relationship
E.g. parent-child, advocate-client, doctor-patient, trustee-beneficiary, religious leader-disciple; undue influence is presumed in favour of the weaker party. It is the duty of the stronger party to show that the weaker party made an independent decision on the contract. e.g. he had an advocate of his own.
In Ottoman Bank Co. Ltd. v. Mawani, the plaintiff bank extended a loan to a business owned by the defendant‟s father and the defendant guaranteed the amount. The fathers business was unable to pay the loan and the bank sued so to enforce the guarantee. Evidence that the defendant was still under the control of the father. He worked in the fathers firm and had no independent source of income. It was held that he wasn‟t liable on the guarantee as it was voidable at his option for the father‟s undue influence.
2. When parties have no special relationship
The party pleading undue influence must prove it by evidence. The circumstances must be such that the party did not make an independent judgement on the transaction, as was the case in Williams v. Bayley, where the defendant entered into a contract promising to pay monies withdrawn from a bank by the son. The banker had made it clear that if no arrangement was arrived at, the defendant‟s son would be prosecuted for the offence. When sued the defendant pleaded the banker‟s undue influence. It was held that he was not liable as the contract was voibale at his option.
3. Unconscionable bargains
These are unfair bargains. They are transactions entered into in circumstances in which one party takes advantage of its position to procure the deal. Such transactions are voidable at the option of the innocent party. The concept of unconscionable bargains was developed by equity courts as an extension of the doctrine of undue influence and was explained by Lord Dening in
David C. Builder ltd. v. Rees.
In Lloyds Bank Co. Ltd v. Bundy, the plaintiff bank extended a loan to a business owned by the defendant‟s son. The defendant guaranteed the loan to the tune of £1,000 but the bank required further guarantee. He extended it to £6,000. His lawyer informed him that it would be unwise to extend the guarantee further. The defendant owned a house with £10,000. An official of the plaintiff bank visited the defendant and procured a further guarantee of up to £11,000. The sons business collapsed and the bank sought to enforce the guarantee against the father who pleaded that it was unconscionable. It was held that the guarantee was voidable at the option of the defendant as it was unfair.
The essence of this remedy is to restore the parties to the position they were before the
It is an equitable remedy whose award is discretional.
The remedy may be availed whenever a contract is vitiated by misrepresentation.
However the right to rescind a contract is lost in various ways: –
1. Delay: A contract cannot be rescinded if a party has slept on its right for too long as “delay defeats equity”. In Leaf v. International Galleries Ltd., where the plaintiff purported to rescind a contract after 5 years. It was held that the remedy was not available on account of delay.
2. Affirmation: A party loses the right to rescind a contract if it expressly or by implication accepts the contract.
3. Third party rights: A contract cannot be rescinded after 3rd party rights have arisen under it, as this would interfere with the rights of a person who was not privy to the original contract.
4. Restitutio in integrum not possible:Rescission is not available if the parties cannot be restored to the position they were before the contract. E.g. if one of the parties is a company and it has gone into liquidation.
The term illegality does not necessarily mean that a criminal offence is involved.
It means that the contract in question is unenforceable as it is injurious to the public or is inconsistent with the public good.
An illegal contract is un-enforceable. This is because for an agreement to be enforceable, it must have been entered into for a lawful purpose.
A contract may be declared, illegal by statutes or a court of law.
a) Contracts declared illegal by Statutes
Under the employment act, wages or salaries are payable in money or moneys worth. A contact to pay wages or salary in kind is illegal and void. Such a contract is said to be illegal as formed and is unenforceable.
b) Contracts declared illegal by courts of law (contracts illegal at common law)
Long before statutory intervention, courts had declared money contracts illegal for being contrary to public policy e.g.
i) A contract to commit a crime, tort or fraud.
Such a contract is illegal and unenforceable as it is a contrary to public policy to commit crimes, torts or fraud in Bigos v. Boustead where the object of the contract was to violate the English Exchange control regulations; it was held that the contract was illegal and unenforceable.
ii) Contracts prejudicial to public safety.
These are contracts which promote harmful activities in a country or its neighbours. E.g. a contract to finance rebels in a country or coup plotters, assisting alien enemies.
iii) Contracts prejudicial to the administration of justice.
These are contracts which interfere with the judicial process e.g. a. A contract to stifle prosecution of an alleged crime.
b. Champerty agreements: This is a contract whereby a party provides financial assistance to another involved in a civil case so as to share the amount awarded
by the court. Such a contract is illegal and unenforceable.
c. Maintenance: this is a contract whereby a party provides financial assistance to another to enable him sue a 3rd party for no reasonable course. Such a contract
facilitates the harassment of a party by another through the courts. It is illegal and unenforceable.
iv)Contracts to defraud state revenue.
A contract whose object is to deny the state whether central government or local government revenue by way of evading tax is illegal and unenforceable.
In Miller v. Karlnski, the plaintiff who was an employee of the defendant for a £10 per week salary had agreed that the amount deducted from the salary as tax was refundable as an allowance. In an action to recover the refund, it was held that it was irrecoverable as the object of the contract was to defraud the state revenue.
v) Contracts liable to promote corruption in public.
Such a contract is unenforceable as corruption is contrary to public policy. In Parkinson v. College of Ambulance and Another, the secretary of a charitable organization informed that plaintiff that it was on to it. The plaintiff gave £3,000 but was not knighted as only the King could bestow the title. In an action to recover the sum, it was held that it was irrecoverable as the contract was illegal.
vi) Contracts liable to promote sexual immorality These are contracts contra bonos mores (contrary to good morals). Such a contract is unenforceable on account of illegality. The contract may be illegal as performed. In Pearce v. Brooks the plaintiff owned a beautiful horse drawn carriage which he rent to the defendant for 12months at stated charges. The plaintiff knew that the defendant was a prostitute and intended to use the carriage to solicit influential customers. In
an action to enforce payment of the hiring charges, it was held that that contract was unenforceable as it was illegal as performed as its purpose was to promote sexual immorality.
vii) A contract based on an illegal contract is also an illegality of the other contract.
EFFECTS OF ILLEGALITY
An illegal contract is said to be „beyond the pale of law‟. Such a contract is unenforceable it creates no rights and imposes no obligations on the parties. Neither party is bound to perform. Money or assets changing hands under an illegal contract is irrecoverable as gains and losses remain where they have fallen.
However such money or assets may be recovered in certain circumstances;
i. Where either party repents/ regrets the illegality before the contract is substantially performed.
ii. Where the parties are not in pari delicto (not equally to blame for the illegality), the less blameworthy party may recover.
iii. If the owner of the money or asset establishes title thereto without relying upon the illegal contract. As was the case in Amar Singh v. Kulubya, where a piece of land had changed hands under an illegal; contract but the plaintiff established his title.
These are contracts which the law treats as non existent, they are generally unenforceable. However, if a contract is only void but not illegal some rights may be enforced by exception. A contract may be declared void by statute or a court of law.
1. CONTRACTS VOID BY STATUTE
Under the Employment Act, a contract to pay wages or salary in kind is null and void. Under the Gaming Act, 1845, wagering contracts are void. A wager is a contract whereby 2 persons or groups of persons with different views on the outcome of some uncertain event agree that some consideration is to pass between them depending on the outcome. Such a contract is void.
2. CONTRACTS VOID AT COMMON LAW (COURTS OF LAW)
These are contracts declared void by courts of law for being contrary to public policy e.g.
a) Contract to oust the jurisdiction of the court. This is a contract which purports to deny the parties the right to seek judicial redress.
b) Contracts prejudicial to the status of marriage.
This is a contract which interferes with the marriage institution. E.g.
a. Marriage brokerage contracts.
b. Contracts whose tendency is to encourage separation.
3. CONTRACTS IN RESTRAINT OF TRADE
This is a contract by which a persons future liberty to engage in a profession or trade in a particular manner or with particular persons is voluntarily or involuntarily restricted e.g. An employee covenant not to work for a business rival or set up a similar business after leaving employment. At Common Law, a contract in restraint of trade is prima facie void for being contrary to public policy.
However, such a contract may be enforced if it is proved that:
1. The restraint was reasonably necessary to protect the interests of the restraining party.
2. The restraint was reasonable to the party being restrained.
3. The restraint was not injurious to the public.
Contracts in restraint of trade may be voluntary or involuntary.
a) Voluntary Restraints
These are restraints agreed to by the parties to the contract e.g.
1. Restraints accepted by employee.
2. Restraints accepted by the seller of business.
3. Restraints accepted by a seller or distributor of goods.
1. RESTRAINTS ACCEPTED BY EMPLOYEE
The employee covenants not to work for a business rival after leaving employment or not to setup a similar business next door. Such a restraint is prima facie void. In Putsman v. Taylor, the defendant who was an employee in a tailoring business, covenanted not to work for the plaintiffs business rival in some 3 defined areas of the city of Birmingham within 3 years of leaving employment.
He worked in one of them within the 3 years and the plaintiff applied for an injunction to retrain him from doing so and the court granted the same on the ground that the restraint was reasonable to the parties.
In Attwood V. Lamont, the defendant was employed in a tailoring business as head of the cutting department; he covenanted not to set up a tailoring business within a radius of 10 miles from the employers business.
He established a business outside the 10 miles but all his customers were from within the 10 miles.
The former employers sued for an injunction to restrain him from doing so. It was held that the restraint was unenforceable as it was too worded and hence unreasonable to the defendant.
A world wide restraint to an employed may be enforced it reasonable to the parties and can only be effective if enforced on a worldwide basis.
As was the case in Nordenfelt v. Maxim Nordenfelt Guns and Ammunition (1984) Mr. Nordenfelt was the only manufacturer of a special gun and ammunition. He sold the business to company for £287.500.
2 years later the company merged with another to from the defendant company which employed Mr. Nordefelt at a salary of £2,000 per year.
The contract of employment provided that Mr. Nordenfelt was not to engage in gun or ammunition business anywhere in the world for 25 years and would not compete with the company in any may for 25 years.
The House of Lords held that whereas the restraint not to engage in the in the Gun business was reasonable and therefore enforceable; the restraints not compete with the company for 25 years was unreasonable and could not be enforced.
In Kores Manufacturing Co. v. Kolok Manufacturing Co. two companies dealing in similar products covenanted not to employ former employees. The defendant engaged a former employee of the plaintiff within the 5 hours.
The plaintiff sued for an injunction to restraint the defendant. It was held that the restraint is not enforceable as it was unreasonable to the parties.
2. RESTRAINT ACCEPTED BY VENDORS OF BUSINESS
The seller of a business may covenant not to set up a similar business next door, this may be necessary to protect the buyer‟s business.
Such a restraint is void common law.
However, it may be enforced if the cost is satisfied that having regard to the type or nature of business, duration of the restraint, area covered and other circumstances, the restraint is reasonable to the parties.
In Dias v. Souto,the defendant sold a business situate on the Island of Zanzibar, it specialized in merchandise for the expatriate community.
He covenanted not to set up similar business within the Zanzibar protectorate. He established a similar business on the Island of Pemba.
The plaintiff applied for an injunction to restrain him from doing so. The court enforced the restraint on the ground that it was reasonable.
This decision was based on the specialized nature of the plaintiff business.
3. RESTRAINT ACCEPTED BY THE SELLERS OR DISTRIBUTORS OF GOODS (SOLUS AGREEMENT)
a A seller or distributor may enter in to a contract with a wholesaler or manufacturer which restricts his acquisition of goods, trading hours etc. The restraint is often referred to as
Solus Agreements and they include:
1. Tying Covenant.
The seller undertakes to purchase all his products from a particular wholesaler or manufacturer; this is in return for certain discounts.
2. Compulsory Trading Covenant.
The seller covenants to keep his business open for reasonable hours everyday.
3. Continuity Covenants.
The seller takes to extract similar covenants form the person who purchases the business from him.
Such restraints are Prima Facie void but may be enforced by a court of law if reasonable to the parties and not injurious to the public.
b) Involuntary restraints
These are restraints imposed by trade associations and professional bodies on their members. They are involuntary in character.
Such restraints are Prima Facie void but may be enforced if reasonable to the parties and are not injurious to the public.
In Kenya contracts in restraint of trade are governed by the Contracts In Restraint of Trade Act6, Under sec. 2 of the Act, a contract in restraint of trade is binding and enforceable in law.
However, the High Court may on application by the affected party declare the contract void if it is
satisfied that having regard to:-
1. Nature or type of business
2. Duration of the restraint
3. Area covered by the restraint
4. All the circumstances of the case, the restraint is unreasonable in that it affords more protection than is necessary to protect the party‟s interests or is injurious to the public.
CONTRACTS UBERRIMA FIDEI
These are contracts of the “utmost good faith”. In the contract of sale of goods, the seller is not bound to disclose anything to the buyer in relation to the subject matter. The operative principle is caveat emptor which literally means “Buyer beware”.
A buyer takes the goods as they are, however, in contracts of the utmost good faith, both parties are bound to disclose material facts within its actual and presumed knowledge failing which the contract is voidable at the option of the innocent party. E.g.
1) Insurance Contracts
2) Partnership Agreements
In addition to the basic elements of a contract certain contracts are subject to certain formalities, which must be complied with for the agreement to be legally enforceable. The formalities includes:
1. REQUIREMENT OF WRITING
Some contracts must be embodied in a formal document e.g. Hire Purchase Agreement, contract of Marine Insurance
2. REQUIREMENT FOR WRITTEN EVIDENCE
Some contracts must be evidenced by some note or memorandum which must contain:-
a. Description of the parties
b. Description of the subject matter of the contract
c. The Consideration
d. Signature of the parties
E.g. Contracts of Guarantee, Contracts of Insurance other than Marine.
3. REQUIREMENT OF CONSENT
Under sec. 6 of the Land Control Act7, a contract for the sale of agricultural land must be consented to by the Land Control Board of the district in which the land is located failing which the contract is unenforceable.
The consent must be applied for within 6 months of the agreement failing which the contract is void.
However, the president is empowered to exempt a transaction from the requirement of consent on application by the parties.
4. REQUIREMENT OF SIGNATURE
A contract entered into with the government must be signed by the Revenue Officer of the ministry or some other duty authorized person failing which the contract is enforceable.
These statutory formalities may be justified on various policy grounds;
a. They promote certainly in transactions
b. Others enhance genuiness and acceptability of contracts.
c. Some formalities perform educative functions E.g. Contents of a Hire Purchase Agreement.
d. Other formalities facilities state intervention private transactions e.g. requirement of consent of the Land Control Board.
The formalities of writing and requirement of written evidence are intended to prevent found, however, it is possible for a party to perpetrate fraud by insisting that the requisite formalities have not been complied with.
To prevent such injustice, equity developed the doctrine of Part Performance.
THE DOCTRINE OF PART PERFORMANCE
The doctrine is to the effect that where parties have entered into an oral agreement and before the formalities of writing are complied with one of the parties does something in furtherance of the agreement, the other party cannot be heard to say that there was no agreement between them.
This doctrine was developed by equity and is now contained in the proviso to sec. 3 of the Law of Contract Act. Under the proviso, Part performance may consist of: –
a) Entry into a party‟s premises before the formalities is complied with.
b) Continuation of possession before the formalities is complied with.
In Credit Finance Corporation v. Ali Mwakasanga, the defendant opted to take a truck on Hire Purchase terms; he completed the application form, paid a deposit and took delivery of the truck. Subsequently, the plaintiff alleged that there was no contract between them as it had not signed its part of the contract. However, it was held that the defendant‟s conduct amounted to part performance and hence there was a contract between them.
DISCHARGE OF CONTRACT
A contract is said to be discharged, when the obligation created by it ceases to bind the parties who are now freed from performance.
However, whether a party is liable or not after discharge, depends on the method of discharge.
A contract may be discharged in the following ways:-
1. Express agreement
4. Impossibility or Doctrine of Frustration
5. Operation of Law.
1. DISCHARGE BY EXPRESS AGREEMENT
A contract may be discharged by agreement if the parties thereto expressly agree to discharge the contract. The mutual promises constitute consideration to support the discharge.
Discharge by agreement justifi ed on the premise that whatever is created by agreement may be extinguished by agreement.
Discharge by agreement may be bilateral or unilateral
a) Bilateral Discharge
If neither performs its part of the contract, the obligation are said to be executory and the discharge is bilateral as both parties agree not to perform. The mutual promises constitute consideration.
b) Unilateral Discharge
If either of the parties has wholly or partially performed its part of the contract, the obligations are said to be executed and the discharge is unilateral.
The party that has performed discharges the other from performance.
Unilateral discharge may take any of the following 3 forms: –
a. Contract under Seal; Such a contract binds the parties and does not requireconsideration.
b. Novation: This is the substitution of the old contract with a new one. The old contractis thereby discharged.
c. Accord and satisfaction: This is the purchase of a release from an obligationwhether contractual or otherwise not by performance but the provision of new or extra consideration which is consideration which is accepted by the other party to discharge the contract. The party that has not performed provides the new consideration which is accepted by the other party. The new consideration is the satisfaction and its acceptance by the other party is accord.
2. DISCHARGE BY PERFORMANCE
A contract is discharged by performance if both parties perform their mutual obligations as agreed. Each party must have performed its party.
Medieval common law insisted that discharge by performance was only possible if parties had performed their obligations precisely and exactly.
This is the common law Doctrine of Precise and Exact which is to the effect that parties must honour their contractual obligations to the letter.
Every aspect of the contract must be performed. It has been observed that it is a fundamental principle of law that contractual obligations be performed precisely and exactly.
The Doctrine of precisely and exact is exemplified by the decision in Cutter V. Powell.
Mr. Cutter agreed to assist Powell, a ship captain as a second matter on a journey from Jamaica to Liverpool, the ship sailed on August 2nd, and Cutter died on September 20th, 19 days before the ship was due at Liverpool. Mrs. Cutter sued for compensation for the work done by Mr. Cutter, it was held that nothing was payable by the defendant as Mr. Cutter had not performed the contract precisely and exactly. This case demonstrates that strict application of the doctrine of precise and exact occasion‟s unjust enrichment.
Common Law admitted exceptions to the doctrine of precise and exact to mitigate its harshness. These are circumstances in which parties will be compensated for work done (quantum meruit) or discharged even though they have not performed precisely and exactly.
These are the cases for granting quantum meruit which are the exceptions to the doctrine of precise and exact
1. Divisible contracts
Although there is a presumption that the contract ought to be viewed in its entirety, some contracts are by their mature divisible and performance of part thereof entitles the party to payment for work done. E.g. Contract of carriage of goods payable per tonne. The carrier is entitled to payment for the quantity carried but may be sued for not carrying the entire quantity as was the case in Ritchie v. Atkinson where a contract of carriage of goods, the shipper carried less than the agreed quantity. It was held that the shipper was entitled to payment on Quantum Meruit (for work done).
2. Substantial performance
If a party has substantially performed its part of the contract, it is entitled to payment for work done. Whether a contract is substantially performed is a question is a question of fact.
In Mershides Mehta and Co. v. Baron Verhegen, the defendant engaged the plaintiff to construct a house for him and the contractual price was payable by installments.
After completion of the house, the defendant refused to pay the last instalment on the ground that the house has some structural defects.
The plaintiff sued. It was held that the plaintiff was entitled to the instalment less the amount due defendant may likely to spend to correct the defect.
This decision was based on the fact the plaintiff had substantially performed its part of the contract
3. Partial Performance If Accepted
If a party to a contract has expressly or by implication agreement to pay for partial performance, the party performing is entitled to payment for work done.
In Sumpter v. Hedges, defendant engaged the plaintiff to construct 2 houses and stables at cost of £565.
The plaintiff abandoned the house after putting up structures valued at £333, the defendant was compelled to complete the houses, subsequently, the plaintiff sued for compensation work done.
It was held that he was not entitled to payment as the defendant had not expressly or by implication agreed to pay for partial performance.
4. Prevented Performance
If a party is ready and willing to perform its part of the contract is prevented from doing so or by the other or the others fault, such party is entitled to payment on quantum meruit.
In Planche v. Colburn, the defendant engaged the plaintiff to write a book for him about himself for £100.
After the plaintiff had done the initial research and written part of the book, the defendant discontinued the writing, the plaintiff sued.
It was held that he was entitled to£50 for work done.
5. Frustration of Contracts
A contract is said to be frustrated when performance of the obligations becomes impossible, illegal or commercially useless by reason of extraneous circumstances for which neither party is to blame.
Frustration of contract terminates it and discharges the parties from performance.
6. Time of Performance
Contractual obligations must be performed within the prescribed time if any or within a reasonable time.
If the contract specifies the date of performance, time is said to be of the essence of the contract and non-performance thereof damages the contract.
This was the case in Panesar v. Popat the defendant ordered furniture to be delivered on April 30th. However, it was not ready by this date, the defendant extended the delivery date to May 10th but the furniture was not ready where upon he cancelled the transaction. The furniture was not ready where upon he cancelled the transaction. The furniture was delivered on May 12th; the defendant refused to take delivery and was sued. It was held that he was not bound to do so as time was of the essence of the contract and the plaintiff had failed to perform.
3. DISCHARGE BY IMPOSSIBILITY OR DOCTRINE OF FRUSTRATION
Medieval common law was based on the principle of absolute contractual obligations. Under this principle, parties to a contract must perform their obligations failing which damages are payable by the party in the default.
In Paradine v. Jane the plaintiff leased a piece of land to the defendant for purposes of farming, however, after the contract, a hostile German army invaded the country and occupied the region in which the land was situate.
The defendant could not farm the land or put it into any economic use. When sued for the lease charges, the defendant pleaded his inability to use the land.
However, he was held liable since the contract had not provided that he would be discharged if it became impossible to use the land.
This case demonstrates that the Common Law did not originally recognize the doctrine of frustration.
The Doctrine is an exception to the principle of absolute contractual obligations.
FRUSTRATION OF CONTRACT
A contract is said to be frustrated if performance of the obligation is rendered impossible, illegal or commercially useless by unforeseen or extraneous circumstances for which neither party is to blame. When a contract is frustrated, it terminates and the parties are discharged
The Doctrine of Frustration may be justified on various grounds: –
1. Implied Term Theory.
It is argued that in every contract, there is an implied term that should such an event occur the parties will be discharged
2. Just and Reasonable solution Theory.
It is only fair that the parties will be discharged.
3. Disappearance of Foundation Theory
It is argued that when a contract is frustrated, its foundation disappears.
4. Change of Obligation Theory It’s argued that when a contract is frustrated, the obligations of the parties change hence the need to discharge the contract.
CIRCUMSTANCES IN WHICH A CONTRACT MAY BE FRUSTRATED
1. Destruction of Subject Matter
If the subject matter of the contract is destroyed before performance and neither of the parties is to blame, the contract is frustrated.
It must be evident that the subject matter was the foundation of the contract.
The destruction need not be total but must affect the commercial characteristics of the subject matter.
In Taylor v. Caldwell, the defendant had hired the plaintiff’s hall to conduct a musical concert at specified charges, before the day of the first concert, the hall was destroyed by fire and neither of the parties was to blame.
In an action by the plaintiff to recover hiring charges, it was held that they were irrecoverable as the destruction of the hall frustrated the contract and thereby discharged the parties.
2. Non-occurrence of an event
If a contract is based on a particular event or state of affairs to obtain at a particular time, its non-occurrence frustrating the contract and discharges the parties.
However, for the contract to be frustrated, it must be evident that the event or state of affairs was the only foundation of the contract.
In Krell v. Henry (1903), the defendant had hired a room in the plaintiff house to enable him view Royal Procession of the coronation of King Edward VII. However, the king was taken ill before the coronation and the ceremony was cancelled.
It was held that the hiring charges were irrecoverable as the cancellation of the ceremony frustrated the contract and discharged the parties.
However, if a contract has more than one foundation the disappearance of one does not frustrate it as the other is capable of performance. As was the case in Herne Bay Steamboat Co. v.Hutton
If performance of contractual obligations becomes illegal by reason of change of law or otherwise the parties are discharged as there is no obligation to perform that which has become illegal.
4. Death or Permanent Incapacitation
In contracts of personal service or performance e.g. employment, the death or permanent incapacitation of a party frustrates the contract and discharges the parties as the obligations are not generally transferable.
5. Government Intervention
If a policy act or regulation make it impossible for a party to complete its contractual undertaking the contract is frustrated and the parties discharged e.g. refusal to grant a licence as was the case in Karachi Gas Company v. Isaaq where the government refused to grant an export licence in respect of certain pipes to be exported to Karachi. When sued, the defendant relied on the government refusal to grant the licence. However, it was held that the contract had not been made to obtain the licence
A contract would be frustrated if a government takes possession of the subject matter or stops the transaction, as was the case in Metropolitan Water Board V. Dick Kerr and Co. In July 1914, the respondent entered into a contract to construct a dam for the appellant within 6 years subject to an extension. However, sometimes in early 1916, a government minister ordered the respondent to stop the contract and dispose of its equipment and the respondent complied. It was held that the minister‟s act frustrated the contract and thereby discharged the respondent.
6. Superveving Events
These are events that delay performance and thereby change the commercial characteristics of the contract. The change must be fundamental. As a general rule, additional expenses do not frustrate a contract; however, they may if they render the transaction commercially useless.
In Tsakiroqlou and Co. Ltd v. Noble Thorl GMBH, the parties entered into a contract for the purchase of a large quantity of Groundnuts to be shipped from Port Sudan to Humburg, the supplier contemplated using the Suez Canal but which by the time of performance had been closed as a consequence the groundnuts were not supplied. When sued, the supplier argued that the alternative route was too expensive and hence the contract had been frustrated. It was held the contract had not been frustrated as; –
1. The additional expenses were recoverable from the buyer
2. The contract had no time limit.
3. The longer route could not damaged the commercial characterizes of the groundnuts
The supplier was liable in damages. In Victoria Industries Ltd V. Lamanbhai Brothers, the parties contracted to buy and sell a quantity of corn maize to be shipped from Jinja to Mwanza and transported by rail to Dar-es-salam for export.
The East Africa Railways and Harbours Corporation had agreed to ship and rail the maize to
However, subsequently, the corporation declined to do so and the seller was unable to supply the maize.
When sued, the seller pleaded that the contract had been frustrated by the change of heart of the corporation as there was no alternative route to the coast.
It was held that the supplier was not liable as the contract had been frustrated.
However, a contract is not frustrated if:-
1. Either of the parties is to blame for the occurrence or non-occurrence of an event
2. The event is expressly provided for in the contract.
EFFECTS/CONSEQUENCES OF FRUSTRATION (ADJUSTMENT OF THE RIGHTS OF PARTIES ON FRUSTRATION)
Frustrated contracts in Kenya are governed by the Law Reform (Frustrated Contracts) Act, 1943 which applies in Kenya as a statute of general application by reason of the schedule to the Law of Contract Act.
Under this Act, when a contract is frustrated:-
1. It is terminated
2. Money pad is recoverable
3. Money payable ceases to be payable
4. If a party has suffered loss by reason of performance, the court may order the other to pay to such party a sum of money
5. If a party has derived benefit other than financial, the court may order such party to pay to the order a sum of money which must be less than the benefit it so derived.
4. DISCHARGE BY BREACH OF CONTRACT
Breach of a contract does not discharge it; it gives the innocent party an opportunity to treat the contract as repudiated or as existing.
If it treats the contract as existing, it is bound to honour its part however, if treats it as repudiated it is not bound to do so.
Breach of contract may be:-
1. ANTICIPATORY BREACH OF CONTRACT
This is a situation where a party to a contract expressly or by implication intimates to the other in advance its intention not to perform on the date of performance. Evidence must clearly suggest breach of contract.
The innocent parties take any of the following steps:-
a) Sue in Damages
The party must prove the anticipatory breach of the contracts well as its willingness to perform its part of the contract.
In Frost V. Knight where the defendant had contracted to marry the plaintiff after his father‟s death but married another person during the lifetime of the plaintiff „s father, it was held that the defendant was liable in damages for anticipatory breach of the contract.
b) Wait for the party to perform by the due date.
The innocent party may opt to afford the other party a chance to perform its part of the contract, however, if the contract is in the meantime frustrated, the innocent party loses all remedies as was the case in Avery V. Bowden.
c) Sue for the Decree of Specific Performance.
The innocent party may apply for the equitable remedy of specific performance to compel the other party to for the equitable remedy of specific performance to compel the other party to perform its part of the contract and the same may be granted if circumstances justify as was the case in Hasham Jiwa V. Zenab where parties entered into a contract for the sale of a piece of land but the defendant repudiated the same before the date of completion and the plaintiff applied for specific performance. The court granted the order and the defendant were compelled to perform.
Where a contract is breach in anticipation, the innocent person is not bound to mitigate its loss.
2. ACTUAL BREACH OF CONTRACT
This entails the non-performance of a party‟s obligation on the due date or tendering defective performance.
The innocent party may treat the contract as repudiated if the breach is fundamental to the contract as was the case in Poussard V. Spiers and Pond where the plaintiff‟s non-appearance from the beginning of the season entitled the defendant to treat the contact as having come to an end.
5. DISCHARGE BY OPERATION OF LAW
Discharge of the operation of law entails the discharge of parties form their contractual obligations at the instance of the law. The parties are freed by law.
Such a discharge may take place in the event of:-
This is the incorporation of the items of a simple contract into a subsequent written agreement between the parties. The simple contract is discharged by the operation o the law.
In contract of personal service or performance, the death of a party discharges the contract.
3. Lapse of Time
If time is of the essence of the contract and a party fails to perform within the prescribed time, the contract is terminated, as was the case in Panesar V. Popat
REMEDIES FOR BREACH OF CONTRACT
When a contract is breached, the innocent party is contractual rights are violated and the party has a cause of action known as breach of contract which entitles it to a remedy.
Remedies for breach of contracts are:-
Common Law and
Whereas Common Law remedies comprise damages only, Equitable remedies include:
Appointment of Receiver
Before 1873, Common Law remedies could only be availed by the Common Law Courts while equitable remedies were only available in the Lord Chancellors Courts. The 2 categories of remedies differ in that whereas common law remedies are awarded “as right” equitable remedies are awarded as discretional.
It is for the Court to decide whether the circumstances justify the remedy.
DAMAGES (monetary compensation)
This is the basic Common Law remedy; it is a monetary award by the court to compensate the plaintiff for the loss occasioned by the breach.
Its objective is to place the plaintiff to the position he would have been had the contract been performed.
Damages for breach of contract may nominal or substantial.
1. Nominal Damages
This is an amount awarded by the court to show that a party‟s rights have been violated but no loss was occasioned or the party was unable to prove loss.
2. Substantial Damages
This is an amount by the court as the actual loss suffered or as the amount the court is willing to recognize as direct consequences of the breach f the contract.
RULES ON THE ASSESSMENT AND PAYMENT OF DAMAGES
1. The purpose of a monetary award in damages is to compensate the plaintiff for the loss suffered. Damages as a remedy are compensatory in nature.
2. The loss or damage suffered by the plaintiff must be proved, the plaintiff must show that but for the defendant‟s breach the loss would not have been occasioned. There must be a nexus or link between the breach of contract and the plaintiff‟s loss failing which the damages are said to be too remote and therefore irrecoverable.
In Hadley V. Baxendale, the plaintiff owned a mill whose crankshaft was broken and required replacement the following day, however there was undue delay by the defendant during which time the mill remained closed. The plaintiff sued for loss of profit. It was held that the defendant was not liable for the lost profit as the same could not be traced to the delay in the delivery of the crankshaft. . The plaintiff‟s loss was too remote and irrecoverable.
This case is authority to the proposition that the defendant is only liable for such loss or damage as is reasonably foreseeable in the ordinary course of events.
3. If a party has special knowledge in relation to the contract but fails to act on it and the other party suffers loss, the party is liable for the loss, as was the case in VictoriaLaundry (Windsor)Ltd. V. Newman Industries Ltd,where the plaintiff Company wanted toexpand it‟s business as well as take advantage of certain lucrative. To do so it required a large boiler which the defendant company agreed to deliver in June. The plaintiff had by letter notified the defendant the urgency with which the boiler was required. The boiler was not delivered until November by which time the plaintiff company lost money from the contract. In an action against the defendant for the loss, it was held that the defendant was liable.
A similar holding was made in The Heron II. The appellant, a ship owner agreed to ship the respondent„s sugar from Constanza to Basra. The appellate knew that respondent was a sugar merchant and that there was a sugar market at Basra. By reason of a detour, the ship arrived 9 days later at Basra, by which time the price of sugar had dropped and the respondent made a loss of £4,011. In an action to recover the same, it was held that the appellant was liable.
4. Mitigation of Loss: This principle is to the effect that when a breach of a contractoccurs, it is the duty of the innocent party to take reasonable steps to reduce the loss it is likely to suffer from the breach. This duty is imposed upon the innocent party by law.
If the party fails to mitigate its loss the amount by which loss ought to have been reduced is irrecoverable. In Harris V.Edmonds, it was held that where the charterer of a ship failed to provide cargo in breach of contract, the ship captain was bound to accept cargo from other person‟s at competitive rates.
Whether or not the innocent party has acted reasonably in mitigating its loss is a question of fact. In Musa Hassan V. Hunt and Another, the appellant had contracted to buy all the milk produced by the respondent for one year. On one occasion, the appellate refused to take delivery of the milk on the ground that it was unfit for human consumption; the respondent proved that it was fit for human consumption.
After the refusal the respondent converted the milk to ghee and casein which fetched a lower price than milk. The appellant argued that the respondent had not acted reasonably in mitigating the loss .It was held that the respondent had acted reasonably.
5. Liquidated damages and penalties: Parties to a contract may beforehand specify the amount payable to the innocent party in the event of a breach .The sum specified may be: Liquidated damages or a Penalty
If the sum is a genuine pre–estimate of the loss likely to be suffered by the innocent party, it is awarded by the court without proof of the actual loss and it is referred to as liquidated damages
In Wallis v. Smith, it was held that liquidated damages are an amount which represents almost the actual loss occasioned and is awarded irrespective of the actual loss.
If the sum has no relation to the actual loss, but is intended to compel performance or it is a sum to be forfeited by the party in default it is regarded as a penalty .A penalty is generally extravagant it covers but does not access loss.
Penalties cannot be awarded by the court, the court assess the amount payable by applying the rules of assessment of damages.
Whether the sum is liquidated damages or penalties depends on the intention of the parties .In making the determination, court are guided by certain presumptions and rules.
PRESUMPTIONS OR RULES FOR DISTINGUISHING LIQUIDATED DAMAGES AND PENALTIES
According to Lord Dunedin in Dunlop Pneumatic Tyre Co.Ltd v. New Garage and Motor Co. The following presumptions assist in the determination:
1. If the sum specified by the parties is extravagant and unconscionable it is deemed to be a penalty.
2. If the sum payable for the non-payment of another is greater it is deemed to be a penalty.
3. If a single lump sum is payable on the occurrence of one or several or all events, some of which occasion serious or minor loss it is deemed to be a penalty.
4. If the sum is payable on the occurrence of only one event it is deemed to be liquidated damages.
5. The categorization of the sum by the parties as “liquidated damages” or “Penalty” „is not binding the court.
6. The fact that a precise pre-estimation of loss is problematic does not necessarily mean that the sum specified is a penalty
7. As a general rule, exemplary or punitive damages are not awarded for breach of contracts.
EQUITABLE REMEDIES (DISCRETIONAL)
1. SPECIFIC PERFORMANCE
The decree of specific performance is a court order which compels a party to perform its contractual obligations as previously agreed.
It compels a party to discharge its contractual obligation.
It orders performance without an option to pay damages. It is an equitable remedy manifesting the equitable maxim that equity acts in personam8.
Specific performance may be granted in circumstance in which
1. Monetary compensation inadequate
2. The subject matter is unique or has rare characteristics e.g. land
The award of specific performance is discretional on the basis of established principles of equity:
The innocent party must seek judicial redress at the earliest possible instance as delay defects equity. The remedy is not available if the innocent party has slept on its rights for too long.
b) Clean Hands
The innocent Party must approach the court free from blame as he who comes to equity must do so with clan hands. Evidence of mistake misrepresentation or duress disentitles the party the remedy
c) Hardship to the dependent
Specific performance will not be decreed if it is likely to subject the defendant to undue
hardship as he who seeks equity must do equity and equality is equity.
d) Performance and Supervision
Specific performance cannot be decreed if is impossible for the defendant to perform or where performance requires contract supervision. This is because court of law are reluctant to make ineffectual orders and do not have the mechanism to supervise performance.
As a general rule, specific performance will not be grantedif it would not have been granted were the positions of the parties interchanged. This is because equality is equality
f) Nature of Contract
Specific performance will not be granted in contracts of personal service or performance e.g. employment as this is likely to perpetrate injustice. However, the remedy may be granted where a contract is breached in anticipation as was the case in Jiwa V. Zenab.
A court of law may decline to decree Specific Performance if;
1. The contract is one of personal service e.g. employment.
2. The contract is revocable by the party against whom an order of specific performance is sought.
3. The contract is specifically enforceable in part only. Where the court cannot grant specific performance of the contract as a whole, it will not interfere.
4. The contract is incapable of being performed i.e. impossibility. Courts are reluctant to make ineffectual orders.
5. Performance of the contract requires constant supervision.
6. The decree is likely to subject the defendant to severe or undue hardship.
7. The contract in question was obtained by unfair means.
This is a court order which either restrains a party from doing or continuing to do a particular thing or compels it to undo what it has wrongfully done. It is an equitable remedy whose award is discretional and may be granted in circumstance in which: –
1. Monetary compensation is inadequate
2. It is necessary to maintain the status quo
TYPES OF INJUNCTION
They may be classified as:-
i. Prohibitory and Mandatory
ii. Interim or temporary and permanent
1. Prohibitory injunction
This is a court order which restrains a party from doing or continuing to do a particular thing.
2. Mandatory injunction
It is a court order which compels a party to put right what it has wrongly done. It is restorative in character.
3. Temporal or Interim Injunction
It is court order whose legal effect is restricted to a specified duration on the expiration of which it lapses. However, it may be extended by the court on application by the plaintiff but can also be lifted on application of the defendant.
4. Permanent or Perpetual Injunction
This is a court order whose legal effect is permanent.
Whether or not an injunction is awarded is the court‟s discretion, in light of which the court takes into consideration certain principles e.g. delay, clean hands, hardship to defendant etc.
However for the order to be granted, the plaintiff must prove that: –
a. It has a Prima Facie case with a high probability of success
b. If the order is not granted the plaintiff is likely to suffer irreparable injury.
If the court is in doubt it must decide the case on “a balance of convenience.” It was so held in
Annielo Giella V. Casman Brown Co. Ltd.
The essence of this remedy is to restore the parties to the position they were before the contract.
It is an equitable remedy whose award is discretional.
The remedy may be availed whenever a contract is vitiated by misrepresentation.
However the right to rescind a contract is lost in various ways:-
1. Delay: A contract cannot be rescinded if a party has slept on its right for too long as“delay defeats equity”. In Leaf V. International Galleries Ltd., where the plaintiff purported to rescind a contract after 5 years, It was held that the remedy was not available on account of delay.
2. Affirmation: A party loses the right to rescind a contract if it expressly or by implicationaccepts the contract.
3. Third party rights: A contract cannot be rescinded after 3rs party rights have arisenunder it, as this would interferes with the rights of a person who was not privy to the original contract.
4. Restitution in integrum not possible: Rescission is not available if the parties cannotbe restored to the position they were before the contract. E.g. if one of the parties is a company and it has gone into liquidation.
4. QUANTUM MERUIT
This literally means “as much as is earned or deserved”
This is compensation for work done. The plaintiff is paid for the proportion of the task completed.
The remedy has its origins in equity and its award is discretional. It may be granted where: –
1. The contract does not specify the amount payable.
2. The contract is divisible
3. The contract is substantially performed
4. Partial performance is accepted
5. A party is prevented from completing it undertaking.
LOSS OF REMEDY (LIMITATION OF ACTION)
When a person’s legal or equitable rights are violated, he is said to make a cause of action e.g. breach of contract, negligence, nuisance etc.
Causes of actions are not enforceable in perpetuity.
The law prescribes the duration within which causes of action must be enforced.
The Limitation of Action Act prescribes the duration within which causes of action must be enforced. If not enforced within the prescribed time the action becomes statute barred and is unenforceable.
E.g. a breach of contract must be enforced within 6 years.
Negligence 3 years
Assault 3 years
Nuisance 3 years
Battery 3 years
Defamation 1 year
False Imprisonment 3 years
Recovery of rent 6 years
Recovery of land 12 years
Enforcing an arbitral award or court order 6 years
The prescription of the duration within which a cause of action must be enforced may be the duration within which a cause of action must be enforced may be justified on policy grounds.
It ensures that justice is administered on the basic of the best available evidence. It ensures that disputes are settled as and when they occur.
WHEN DOES TIME STARTING RUNNING
As a general rule, time starts running on the date the cause of action accrues or arises.
However the running of time may be postponed in certain circumstances e.g
1. If the prospective plaintiff is an infant or minor, time starts running when it attains the age of the majority or dies whichever occurs first.
2. If the prospective plaintiff is of unsound mind, time starts running when he becomes of unsound mind or dies whichever comes first.
3. If the prospective plaintiff is labouring under ignorance, fraud or mistake time starts running when he ascertains the fact or when a reasonable person would have ascertained.
4. If the prospective defendant is the president, time starts running when he leaves office
or dies whichever occurs first.
When time starts running, it generally runs through and the action becomes statute barred. However, a statute barred action may be enforced with leave of the court if it is proved that the failure to sue was justified.
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