The approach the Zimbabwean courts take towards the question of damages in breach of contract cases.
INTRODUCTION
A contract (according to Gibson 1997) is a lawful agreement made between two or more persons within the limits of their contractual capacity, with the serious intention of creating a legal obligation, communicating such intention, without vagueness, each to the other and being of the same mind as to the subject matter, to perform positive or negative acts which are possible of performance.
Contracting parties through agreement, breach and operation of law can terminate contractual agreements. This paper will focus on termination of contracts through breach. Breach of a contract involves conducts, which are inconsistent with proper performance of the agreement. It is a violation of a material fact of the agreement. The material fact breached should go to the root of the contract.
In Zimbabwe, the main remedies available for a breach or threatened breach are; specific performance, cancellation, interdict and damages. The Zimbabwean law unlike the English law allows or permits the plaintiff to choose his remedies provided he does not want to just enrich himself. Further, the plaintiff should not endeavor to enforce two inconsistent remedies.
SPECIFIC PERFORMANCE
This is enforcement or calling of enforcement of the exact performance by the injured party to a contract. Our law does not allow a party in breach of a contract to rid their default by paying damages but, allows the injured party to demand specific performance, which however, is subject to the discretion of the court as was decided in Farmers' Co-operative Society v Berry 1912.
CANCELLATION
When there is breach going to the root of the contract the other party is entitled to cancel the contract. The injured party must elect within reasonable time whether to cancel or enforce the contract.
INTERDICT
It is a prohibitory order of the court that prohibits a specified act or acts. It makes it mandatory for the concerned party to obtain from doing what has been mentioned in the order. The
A contract (according to Gibson 1997) is a lawful agreement made between two or more persons within the limits of their contractual capacity, with the serious intention of creating a legal obligation, communicating such intention, without vagueness, each to the other and being of the same mind as to the subject matter, to perform positive or negative acts which are possible of performance.
Contracting parties through agreement, breach and operation of law can terminate contractual agreements. This paper will focus on termination of contracts through breach. Breach of a contract involves conducts, which are inconsistent with proper performance of the agreement. It is a violation of a material fact of the agreement. The material fact breached should go to the root of the contract.
In Zimbabwe, the main remedies available for a breach or threatened breach are; specific performance, cancellation, interdict and damages. The Zimbabwean law unlike the English law allows or permits the plaintiff to choose his remedies provided he does not want to just enrich himself. Further, the plaintiff should not endeavor to enforce two inconsistent remedies.
SPECIFIC PERFORMANCE
This is enforcement or calling of enforcement of the exact performance by the injured party to a contract. Our law does not allow a party in breach of a contract to rid their default by paying damages but, allows the injured party to demand specific performance, which however, is subject to the discretion of the court as was decided in Farmers' Co-operative Society v Berry 1912.
CANCELLATION
When there is breach going to the root of the contract the other party is entitled to cancel the contract. The injured party must elect within reasonable time whether to cancel or enforce the contract.
INTERDICT
It is a prohibitory order of the court that prohibits a specified act or acts. It makes it mandatory for the concerned party to obtain from doing what has been mentioned in the order. The
References: 1. Butterworths Digital Library, Zimbabwe Law Reports. 2. Volpe Peter, Commercial Law of Zimbabwe 3. Christie R. H, Business Law in Zimbabwe