In the day to day running of lives, at some point, people engage in agreements and because of the flawed nature of humanity, sometimes people fail to honour these agreements.
It is then that the aggrieved party may seek recourse at law and is sometimes disappointed to discover that whatever they agreed upon with the other party may not be enforceable at law for one or many other reasons.
The question that the writer seeks to answer is whether or not every agreement counts as a valid contract and is enforceable at law.
The starting point would be to define the two terms. An agreement is an arrangement, promise made with somebody whereas a contract is any agreement that is enforceable at law.
From the definition of the two terms, one can tell that an agreement is part of a contract however it is not what makes a contract valid at law.
In the following segments, the writer will dissect what it is that then makes a contract valid and enforceable at law.
There are essential elements that make a contract enforceable at law. These are, an offer and acceptance, an intention to be bound (animus contrahendi), meeting of the minds (consensus ad idem), contractual capacity, legality and the possibility to perform.
All these elements are essential to qualify an agreement as a contract, if one is absent from the agreement, then it ceases to be a contract.
Offer and acceptance
An offer is quite simply, a proposal to contract. Therefore, an offer is clearly stated terms on which a party is willing to contract which upon acceptance by another party, forms the basis of a contract.
An acceptance is a clear and unequivocal agreement to contract on the given terms. Parties have to be clear on what it is that they agreed upon and it is at this stage that contractual obligations arise.
Contractual capacity
For a contract to be recognised at law, it has to be between parties who are legally recognised under the law as having the requisite locus standi (ability to sue and be sued). As a general rule, anyone can enter into a contract with anyone based on the doctrine of freedom of contract.
However, there are certain exceptions to the general rule which include but are not limited to, minors, insolvents, mentally ill persons and prodigals- these cannot contract.
Children below the age of seven have no contractual capacity. Minors between the age of seven and eighteen also do not have contractual capacity but may contract with the assistance of their guardians.
Mentally ill persons cannot contract as they do not have the capacity to interpret the terms of contract.
Insolvents as a general rule cannot contract, however they may contract with the assistance of a trustee. Similarly, prodigals, cannot contract except in circumstances where they have the assistance of a curator.
Legality
In essence, a contract should be capable of enforcement. Therefore, it has to be based on terms that are legal and enforceable at law.
Anything that contravenes the law is incapable of being enforced and it invalidates the contract. A contract is illegal if it contravenes a statute or goes against a common law principle. It is treated as void from the instance.
Possibility to perform
Always, parties should agree on performance that is practical and possible.
This possibility encompasses legal possibility in the sense that something ought to be legal for one to be able to perform. An example is a contract for the sale of marijuana.
That contract is void on the basis that the sale of marijuana or cocaine is illegal in Zimbabwe therefore the contract is void ab initio (from the instance).
Clarity
A contractual agreement must be clear on the terms upon which the parties agree. There shouldn’t be any vague terms or conditions.
This clarity is necessary so that each party is clear on what their contractual obligations are and what is expected of them in fulfilling their own end of the bargain. Clarity is also necessary when it comes to enforcement of contracts by the court.
Animus contrahendi
Animus contrahendi refers to the parties’ intention to be bound. The parties must both be aware of what they are agreeing to and be willing to be bound by the terms of their contracts.
Consensus ad idem (meeting of the minds)
There must be agreement between the parties. Each of the parties must assent to the terms of contract.
Formalities
Contracts can be oral (by word of mouth) or written. Where the contract is written, it has to be couched in such a way that it follows the formalities regarding that type of contract.
In conclusion, not every agreement between persons or groups of persons, natural or juristic, counts as a contract.
A contract should have all of the afore-mentioned requirements discussed above.
Fungai Chimwamurombe is a registered legal practitioner and Senior Partner at Chimwamurombe Legal Practice and can be contacted for feedback at fungai@zenaslegalpractice.com and WhatsApp 0772 997 889. Amina Maseko is a legal intern. She can be contacted on mitchelleamina6@gmail.com or 0782659430
