MZUMBE UNIVERSITY

(MBEYA CAMPUS)

FACULTY OF LAW
LL.B I 2008/2009

SUBJECT: CONTRACT LAW

TASK: Group Assignment

GROUP MEMBERS;
 YAHYA FATMA 1183/T.08

 MISSO ESTHER Z. 1068/ T.08

 MUSHI JULIANA 1090/T.08

 MINJA THOMAS T. 1067/T.08

 MWAMPINGE EDGAR B. 1104/T.08

 MALLYA ELIZABETH M. 1025/T.08

 MAKALLA EUNICE OTTO .1020/T.08

 NDOSSY AISHA

 CHAMI NEMES L.

 KIKO GODFREY G.
  ROBART NEEMA 1140/T. 08

 MHOJA JOSHUA 1O66/T.08

 MOTETE KIHIRI

 HENRY GASPER

QUESTION;

(a) “In general, contract entered into under a common mistake are still binding upon
the parties.” To what extent does this statement represent the law?

(b) Mzumbe University (hereinafter to be referred as MU) decides to stage a big band
concert and engages a number of eminent comedians, paying each of them 20
percent of the agreed fee at the time the separate contracts are made. Three days
before the material date, the MU was informed that four of the comedians will not
be appearing. Joti can not get a visa to enter the country and Mpoki clams that
his fee is not large. Bwabwa has injured his fingers during chopping firewood
while Pampula says that he is incapacitated with a heavy cold in Mbeya City.
MU believes that the concert will be a failure and decides to cancel it.
Advice MU as to;
(i) The effect of each on the contracts, whether it may recover the
advance payment from any of these four comedians’ and whether MU
has any further claim for compensation against any of them.
(ii) MU’s legal position with respect to the other members of the group
who are willing to appear, and to the public who have bought tickets
for the concert.
(B) (i)
JOTI

The effect of Joti incident to be unsuccessful to obtain visa to enter the country on the
contract;

Whether the failure of Joti to obtain Visa has lead to FRUSTRATION of a contract.

Under the doctrine of Frustration a contract may be discharged if after its

formulation events “supervening event” occur making its performance impossible and in
a certain analogous situations.1 The failure of Joti to obtain Visa is a supervening event
which leads to the frustration of the contract. The supervening event i.e. failure of Joti to
obtain Visa, lead to the impossibility of the performance of contract, and thus lead to the
obvious ground of the frustration. This is provided in Tanzania Law of Contact Act2
section 56(2) which states that,
“A contract to do an act which, after that contract is made, become impossible,
or, by reason of some event which the promisor could prevent, unlawful, become void
when the act become impossible.”
For instance; If A contracts to stage a series of shows during the months of June
to September but in May sentenced to imprisonment for one year or become insane
permanently or for a substantial part of the period in question, the contract will be
similarly be discharged.
Therefore, if Joti contracts to participate in a concert which will be staged, the
following 4 days to come, but today fail to get Visa, to enter the country, permanently or
for substantial part of the period in question, the contract will be incapacitated and thus
be frustrated and discharged.

Whether Mzumbe University may recover the advance payment from Joti?
The issue, whether MU may recover the advance payment from Joti depend on
whether there was
(i) Total failure of consideration or
(ii) Partial Failure of consideration.

1
Peel Edwin. 2007. The Law of Contract, 12th Edition. London. Sweet & Maxwell publisher pg
2
Cap 345 RE 2002
In Total Failure of Consideration a contracting party can recover back money paid
under a contract if there is a “total failure of consideration” i.e. if no part of the
performance for which h e bargained has been rendered.
In the FIBROSA3 case;
A buyer of goods recovered back an advance payment when Frustration had prevented
the delivery of any part of the goods.
Lord Simon explained the meaning of consideration in this context:
“In the law relating to the performance of the contract, the promise to do a thing
often be consideration, but when one is considering the law of failure of
consideration and quasi-contractual right to recover money on that ground it is,
generally speaking, not the promise which is referred to but the performance of the
promise.”

Partial Failure of consideration

This is an “Intermediate situation in which there has been a partial failure; and in
such cases the traditional view, or general rule, is that there is no right to recover back a
proportionate part of the money paid.”4
If A, for example, employed B for lump sum paid in advance to paint A’s house
and B abandoned the job before it was finished, A could not recover back any part of the
payment; the right to recover back money paid on account of failure of consideration is
said to be restricted to causes in which the failure is “total”.
One reason for this requirement is that, in the example just given, A already has
his remedy in damages.
Accordingly, in Joti case, there was a “total failure of consideration”. Joti was
paid 20 percent of the agreed fee at the time the contract was made, but due to the
frustration of the contract even before its performance i.e. where “no part of the
performance for which he (Joti) bargained has been rendered;
Then in that case, Mzumbe University may recover back an advance payment
since Frustration has prevented the performance of any part of a contract as it was
stipulated there in.

Whether Mzumbe University (MU) has any further claim for compensation
against Joti?
Mzumbe University(MU) have no further claim against Joti, unless, there was a
contractual provision for the event i.e. failure to get Visa, or failure to get Visa was a self
–induced Frustration by Joti, or Joti foresaw the event the events and still went on and
contracted with MU.

MPOKI
Whether the act of Mpoki to claim that the fee is not large after he has
entered into a contract can amount to breach of a contract?

3
[1943] A.C 32
4
Peel Edwin. 2007. The Law of Contract, 12th Edition. London. Sweet & Maxwell publisher pg 1134
Professor Treitel has stated that a Breach of the contract is committed when aparty
without lawful excusse fail or refuse to perform what is due from him under the contract,
or performs defectively or incapacitated himself fom performing. It should be noted that
in all cases the failure to provide the promised performance must be without lawful
excuse.
The consequences of breach of contract, does not automatically, bring a contract
to an end. Decro-Wall International SA v Practitioners in Marketing Ltd 5 which
states that a breach of contract gives various options to parties who is not in breach. It
includes that the innocent party may recover damages in respect of the loss which has
suffered. Also he may sue to enfore the innocent party’s obligations under the contract,
and the innocent party may terminate futher performance of the contract or restitution.

A breach of contract may take place when a party

(i) Repudiates his ability before performance is due.
(ii) Disables himself from performing his promise
(iii) Fails to perform his obligations.

A contract is said to be breached when its terms are broken: a failure to honour one’s
contractual obligation is what constitutes a breach of contract. Only two types of breach
may discharge a contract repudiation and fundamental breach.6
A person is said to repudiate a contract when he intimates to the other party, by
word or by conduct, that he has no intention to honour his contractual obligation.
Repudiation as such may be express or implied. It is express where the party in breach,
by latter or by word of mouth, directly informs the other party that he does not intend to
honour his contractual obligation, or has changed his mind etc. implied repudiation
depends on the circumstances of the case. Where, for instance, A sell property to B to be
delivered to be B on a specified date, but before that date A resells the same property to
C. A will have impliedly repudiated his contract with B. in all cases where a party is
alleged to have repudiated a contract; the repudiation must be proved otherwise the
contract will not be treated as discharged.

Where the contract is repudiated before the time is due, there is said to be an anticipatory
breach, e.g. where under a contract of sale the delivery date is stated to be the 30th but on
the 10th the seller informs the buyer that he does not intend to deliver the goods on the
30th date at all. In this case the buyer has two options; he may choose to treat the contract
as discharged and sue immediately, or may choose to wait for the date of performance to
come before taking any action against the seller.

When one party falls to perform their contractual obligation or performance is defective
or he is found within a contract. This can result into two remedies which are repudiation
or damages. Breach may be actual or anticipated (it may have happened or be about to
happen.)

5
(1971) 1WLR 361
6
Teddy manual
For example if supplier of goods does not make delivery on the agreed date this is actual
breach and if a supplier of goods informs the buyer sometime before the due date that he
has no intention to deliver, this is anticipatory breach.
Hochster V. De La Tour (1853) 2 El. & Bl. 678

Whether MU can recover the advance payment from Mpoki?

Whether Mzumbe University (MU) has any further claim for compensation against
Mpoki?

BWABWA

Whether the incident of Bwabwa to injure his fingers while chopping

firewood would incapacity him (Bwabwa) from doing his contractual duty and
amount to discharge of contract under frustration?
The incident of Bwabwa to injure his finger out of his free will and where he
could not foresee at the time of contracting that he was going to injure his finger while
chopping firewood could amount to frustration of the contract.
In a case of Robinson v. Davidson7An Artist promised to sing at a theatre on
particular day. But because of serious illness the artist could not sin on the agreed day. It
was held that the artist was not liable for damages

MU recovery and compensation can be viewed into different legal position.

MU legal position in Tanzania section 56(2) of Law of Contract Act8 provides for
a contract which becomes impossible by reason which the promisor could not prevent,
such contract become void. Also by virtual of the same law that provides that when an
agreement become void under such agreement is bound to restore or make compasetion
for it from the person from whom he received it. Therefore MU can recover an advance
payment paid to Bwabwa as far as Bwabwa has not incurred expenses before for the
performance.
However it depends on the discretion of the court, if it think fit for any side to
recover.

Whether MU can recover the advance payment from Bwabwa?

Whether Mzumbe University (MU) has any further claim for compensation against
Further comersation to MU co

PAMPULA

Whether the incident of Pampula to claim that he is incapacitated with a

heavy cold in Mbeya city could amount to the breach of the contract

7
(1871) L.R 6
8
[Cap 345 R.E. 2002]
 In general, where a party is permanently or for a substantial part of the period in
question, being incapacitated from performing such a contract a contract may be
frustrated and be discharged.
However, even if an event occurs which would normally frustrate a contract under
the rule so far considered, the doctrine of frustration may be excluded if the contract
provides for the event which was foreseen or foreseeable. No frustration for foreseen or
foreseeable events. Section 56(3) of Tanzania Law of Contract Act9 provides that;
Where one person has promised to do something which he knew or, with
reasonable diligence, might have known, and which the promisee did not know to be
impossible or unlawful, such promisor must make compensation to such promise for any
loss which such promise sustains through the non-performance of the promise.
Where the parties can at the time of contracting foresee the risk that a
supervening event may interfere with performance, the normal inference is that their
contract was made with reference to that risk.
Vaughan Williams L.J. has said, “The test [of Frustration] seems to be whether
the event which causes the impossibility was or might been anticipated…” It has been
held that a party can not rely, as a ground of frustration, on an event which was, or should
have been, foreseen by him but not by the other party10.
In Walton Harvey Ltd v Walker & Homfrays Ltd11 the defendants granted the
claimants the right to display an advertising sign on the defendants’ hotel for seven years.
Within this period the hotel was compulsorily acquired, and demolished, by local
authority acting under statutory powers. The defendants were held liable in damages.
The contract was not frustrated because the defendants knew, and the claimants did not,
of the risk of compulsory acquisition. They could have provided against that risk, but
they did not”.
Consequently, owing to the above explanation, Pampula claim that he is
incapacitated with a heavy cold in Mbeya city could not amount frustration but rather
could lead to the breach of contract.

Whether MU can recover the advance payment from Pampula?

Mzumbe University can recover the advance payment which he gave to Pampula
due to the fact that, there is a “total failure of consideration” where no part of the
performance for which he (Pampula) bargained has been rendered.

Whether Mzumbe University (MU) has any further claim for compensation
against Pampula?
Mzumbe University can claim for further compensation against Pampula basing
on the fact that Pampula discharged the contract as provided under Section 56(3) of
Tanzania Law of Contract Act12 provides that;
Where one person has promised to do something which he knew or, with
reasonable diligence, might have known, and which the promisee did not know to be
impossible or unlawful, such promisor must make compensation to such promise for any
loss which such promise sustains through the non-performance of the promise.
9
[Cap 345 R.E. 2002]
10
Peel Edwin. 2007. The Law of Contract, 12th Edition. London. Sweet & Maxwell publisher pg 964
11
[1931] 1 Ch.274.
12
[Cap 345 R.E. 2002]
B (ii)
Whether MU will be liable for breach of contract to other members of the group
who are willing to perform and to the general public who have bought the tickets for
the concert

Section 39 of Law of Contract Act provides for anticipatory breach of contract

“When a party to a contract has refused to perform or disables himself from performing
his promise in it entirety the promise may put an end to the contract, unless he has
signified, by word or conduct his acquiescence in its continuance”

In the case of Hochstar v. De La Tour, D engaged H on 12th april to enter into

his service as courier commerce on 1 st June, on 11th may D wrote to H telling him that his
services would no longer be required. H immediately brought an action for damages
although the time for performance had not yet arrived. It was held H was entitled to do
so.
MU entered in to contracts with the other members of the group to perform in the
concert and MU sold tickets to the public who where to came to the concert. Cancellation
of the concert by the general
Advice for Mzumbe University with regard to the other members of the group
who are willing to appear is that, Mzumbe University entered into a contract with
members of the group each separately. Cancellation of the concert would be refusal or
disabling themselves from performing there duty of the contract hence would amount to
breach of contract. In this case mu could be liable for payment of damages to the other
members of the group under section 73(1) of the law contract act which provides that
compesation is recoverable for loss or damages which either arise naturally in usual
course of things from the breach or the parties knew at the time of breach.

Whether MU would be liable for the breach of contract to the public who have
bought the tickets for the concert.

Under common law, damages for mentral distress can be recovered in

contracts. In the case of Jarvis v. swans tours Ltd, the defendant advertise a trip to
morliaph where the plaintiff was attracted by the advertisement and paid for the trip. As a
result all the attractions promised where not there and he was very disappointed and
decided to sue on breach of contract.in the court it was held that mr Jarvis could recover
damages for the cost of his holiday, but also damages for the distress and frustration
caused by the breach;