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ZIMBABWE EZEKIEL GUTI UNIVERSITY

FACULTY OF BUSINESS, ECONOMICS AND ACCOUNTING

COURSE NAME : Commercial Law

COURSE CODE : CAC110

Lecturer : Mrs J Machaka. BA Gen (UZ), LLBS Hons (UZ), LLM (MSU).
( Legal Practitioner, Conveyancer and Notary Public)
Faculty : Faculty of Commerce
Venue : Faculty of commerce Lecture Theatre

Email : judymachaka@gmail.com

Cell : 0775223794

: 0712531554

Purpose of the course

The purpose of this course is to assist students to understand the origins of


Zimbabwean Commercial Law. It also helps them understand the basic elements
and legal rules applicable in the modern commercial business environment. It
looks into the principles of commercial law which covers case law, statutes and
authoritative texts applicable in the country. This course will also assist students
with basic legal knowledge for simple solutions to commercial business problems
in a clear and logical manner and to be able to apply the legal rules to given
factual situations in the contemporary world.
Course Aims

The course aims; at imparting knowledge to students and help them to understand the
origins of the Zimbabwe Commercial Law;

• at creating a sound basic knowledge of Commercial Law, including a detailed


knowledge of all the pivotal judgments;

• assisting students have an ability to answer problem type questions and write
essays in a logical, coherent and concise manner;
• at giving students the ability to solve elementary problems that integrate different
issues in Commercial Law;

• at preparing the students to appreciate legal principles as they relate to commerce;

• assisting students to have an ability to communicate clearly both in writing and


orally.

Course Objectives

By the end of the course students should be able to; articulate the various legal
principles and have a thorough understanding of important concepts governing
commerce and business;
• to facilitate the development of understanding of how Commercial Law is applied in
specific situations, using legislation, case law and other relevant material;

• to facilitate the development of appropriate analytical and problem-solving skills (i.e.


the application of a theoretical knowledge of the law to practical problems);

• to apply legal principles to any set of given facts with specific reference to contracts
e.g contract of sale, lease;

• to critically analyse, review and apply the legal principles in any set of given facts.

Assessment Methods

• These learning outcomes will be achieved by students through attending lectures


and tutorials;

• Reading and summarizing prescribed cases, legislation, articles and other material
within the context of the course;

• Writing assignments, participating in tutorials and handing in assignments on time;

• Participating in discussions during tutorials and lectures;


• Receiving specific and general feedback from lecturers and tutors in order foster
improvement.

• Studying prescribed material to the extent that candidates are able to solve specific
problem arears.
Assessment

• The overall mark is made up of 30% course work and 70% from a 3 hour end of
semester examination.

• Course work consists of a group work, 1 individual assignment and/or 1 in-class test.

Lectures

. Commercial Law has been assigned at least 3 hours per week, making a total of 36
hrs.

. Lectures are COMPULSORY and there is penalization for absenteeism without a


valid reason

Course content

1. INTRODUCTION TO COMMERCIAL LAW:

Under this heading, law will be defined and its purpose in society will be discussed.

• Definition of commerce and commercial law


• Legal provisions under commercial law

BOOKS

2. HISTORY & SOURCES OF ZIMBABWEAN COMMERCIAL LAW:

Five sources of law will be discussed, that is , legislation, common law, judicial
precedent and custom. A brief history of how Zimbabwe's common law is Roman Dutch
law as ammended will be given

•The Roman-Dutch Law (Common Law) : In South Africa

. Customs (lex mercatore)

Book v Davison 1988(1) ZLR 365 @ 384

Books

RH Christie Bussiness Law in Zimbabwe Juta & Co 2011


,p22-27

CH Mucheche, Advanced Practical Guide to Business Law in Zimbabwe, Zimlaw Net


2014 p5-8

A R Chizikani Commercial law in Zimbawbwe, Word & Image Publications Harare, 2010
p3-43
3. INTRODUCTION TO LAW OF CONTRACT

Students will get to learn what a contract is, ie a lawful agreement between one or more
persons within the limits of their contractual capacities. They will get to understand
what constitute a valid offer and acceptance. They will get to appreciate the rights and
obligations that flow from different types of agreements and nature of remedies avilable
in the event of breach.

3.1 What is a contract?

3.2 What constitutes an offer?

3.3 What entails acceptance.

3.4 Formalities

Cases

-Nkomo & ors v ZESA HH-96-04

-Green Acres Farm (pvt) Ltd v Haddon Motors (pvt) Ltd 1983 (1) ZLR 17(s)

-Municipality of Bulawayo v Zimbabwe Football Association 1989 (3) ZLR 261(s)

BOOKS

• A.J. Manase, L. Madhuku - A handbook on commercial Law in Zimbabwe

• R H Christie, Business law in Zimbabwe, Juta & Co 1998 p30-128

• A R Chizikani Commercial law in Zimbawbwe, Word & Image Publications Harare,


2010 p87-155

• R Matsikidze, Mechantile law in Zimbabwe: The law of hire, contract, agency and
sale. DP Print media, 2017 p1-41
• CH Mucheche, Advanced Practical Guide to Business Law in Zimbabwe, Zimlaw
Net 2014 p34-58

• C Mucheche, Commercial Law in Zimbabwe: Cases and materials ALRD Zimlaw


Net 2013 p313-527

• Sharrock R., Business Transactions Law, 7th Ed, Juta & Co, Cape Town, 2002.

• J Scott et..al The law of commerce in South Africa Oxford University Press 2014

4.1 LAW RELATING TO CONTRACT OF SALE:

Students will get to know what constitute a contract of sale. They will be able to identify
features/ ingredients in that contract which distingishes it from any other contract.
Students will be able to note the legal effects of a contract of sale. They will be able to
identify duties/ obligations of parties to a contract of sale and remedies available to each
part in the event of breach.

4.1.1 What is a contract of sale?

• Essential ingredients of a contract

• Agreement

• Price

• Merx
• The legal effects of contract of sale

• Passage of risk

• Passage of ownership

Rights and duties of the parties

Duties of the seller

• To take care of the merx

• To deliver the merx

• To guarantee against eviction

• To guarantee against latent defects

Duties of the buyer

• Payment of the purchase price

• To take delivery

• To reimburse the seller

• To inspect the merx

Cases

-Warren Park Trust V Pahwarngira and Ors HH- 1591-06 @p4

-Westinghouse Btake and Equipment (Pty) Ltd Bilger Engineering (Pty) Ltd
1986(2) SA 555 (A)
-Machiva v Commercial Bank of Zimbabwe Ltd and Anor

-BOOKS

• A.J. Manase, L. Madhuku - A handbook on commercial Law in Zimbabwe

• R H Christie, Business law in Zimbabwe, Juta & Co 1998, p141-168

• A R Chizikani Commercial law in Zimbawbwe, Word & Image Publications Harare,


2010 p156-184

• R Matsikidze, Mechantile law in Zimbabwe: The law of hire, contract, agency and
sale. DP Print media, 2017 p69-87

• C Mucheche. Advanced Guide to Business Law in Zimbabwe. Zimlaw Net


publishers, 2014 p77-83

• Sharrock R., Business Transactions Law, 7th Ed, Juta & Co, Cape Town, 2002.

5. THE LAW RELATING TO SPECIAL SALES

Law relating to special sales will be introduced and students will get to appreciate the
named special sales

5.1 Cash on Delivery (COD)

5.2 Free on Rail (FOR)

5.3 Cost Insurance and Freight (CIF)

5.4 Free on Board (FOB)


5.5 Hire Purchase Agreement

5.6 Conditional Sales

5.7 Sale in execution

5.8 Option and right of first refusal

5.9 Installment sale of land

BOOKS

• A.J. Manase, L. Madhuku - A handbook on commercial Law in Zimbabwe

• R H Christie, Business law in Zimbabwe, Juta & Co 1998, p168-177

Sharrock R., Business Transactions Law, 7th Ed, Juta & Co, Cape Town, 2002

6. THE LAW OF AGENCY

The nature of the contract and law of agency will be defined and essential elements of
agency will be discussed. Students will get to know the various types of Agency. they
will also get to know how authority is acquired by agents. duties of the parties in a
contract of agency will be atticulated and remedies available to each part in the event of
breach. Under this topic, how agency is terminated will be discussed.

6.1 Definition & Nature of the Contract of Agency

6.1.1 Essential elements of Agency

6.2 Types of agency


6.2.1 Broker

6.2.2 Factor

6.2.3 Auctioneer

6.2.4 Estate Agent

6.2.5 Del Credre

6.3 Types of authority


6.3.1 Actual authority

6.3.2 Authority by ratification

6.3.3 Unauthorised administration/(Negotiorum Gestor)

6.4 Duties of the Agent

6.4.1 To act within scope of the mandate

6.4.2 To act within the principal’s instruction

6.4.3 To act the mandate personally

6.4.4 To keep accounts to the principal

6.4.5 Duty of utmost good faith


6.5 Duties of the Principal

6.5.1 Payment of remuneration

6.5.2 Duty to reimburse the agent

6.5.3 Duty to indemnify the agent

6.6 Termination of agency

6.6.1 Revocation

6.6.2 Renunciation

6.6.3 Death

Cases

Ukubambana Kubatana Investiments Ltd v Privatisation Agency of Zimbabwe &


Anor HC-4757-02 @p19

De Villiers v James 1996 (2) ZLR 597(s) @602

Watson v Gilson Enterprises (Pvt) Ltd & Ors 1997 (2) ZLR 318 (H)

Seniors Service (Pvt) Ltd v Nyoni 1986 (2) ZLR 293 (s)

Mineworkers v Broadrick 1948 (2) SA 959

Flood v Taylor 1978 RLR 230

Bloom v Taylor 1962 (2) SA 532

BOOKS

• A.J. Manase, L. Madhuku - A handbook on commercial Law in Zimbabwe


• R H Christie, Business law in Zimbabwe, Juta & Co 1998, p326-355

• R Matsikidze, Mechantile law in Zimbabwe: The law of hire, contract, agency and
sale. DP Print media, 2017 p47-67

• C Mucheche. Advanced Guide to Business Law in Zimbabwe. Zimlaw Net


publishers, 2014 p72-76

• A R Chizikani Commercial law in Zimbawbwe, Word & Image Publications Harare,


2010 p185-202

Sharrock R., Business Transactions Law, 7th Ed, Juta & Co, Cape Town, 2002

7. LAW OF NEGOTIABLE INSTRUMENTS

Under this topic, abrief history of negotiable instruments will be given. Negotiable
instruments will be identified and discussed and their essential requirements identified.
Crossings will be discussed and the issue of liability will be discussed.

7.1 INTRODUCTION

7.1.1 Brief history of negotiable instruments

7.1.2 Definitions of Negotiable instruments

7.2 Essential requirements of negotiable instruments

7.3 Negotiability

7.4 Types of Negotiable instruments

7.5 Characteristics of a promisory note

7.6 Bills of exchange


7.6.1 Cheques

7.7 Payment and negotiation of cheques

7.8 Crossings

7.9Liability

CASES

-STANDARD BANK V SHAM MAGAZINE 1977(1)SA 493

-ZIMBABWE BANKING CORPORATION LTD V PYRAMID MOTOR CORPORATION


(PVT ) LTD 1985 (1) ZLR 358 (S)

-BANK OF CREDIT AND COMMERCE LTD V UDC 1990 (2) ZLR397(S)

-SAPPI MANUFACTURING (PVT) LTD V STANDARD BANK OF SOUTH AFRICA


LTD 1997 SA 457 (AD)

-BARCLAYS BANK AND ANOR VBANK OF ENGLAND [1985] ALL ER 385

STATUTE

BILLS OF EXCHANGE ACT (CHAPTER )

BOOKS

• A.J. Manase, L. Madhuku - A handbook on commercial Law in Zimbabwe

• R H Christie, Business law in Zimbabwe, Juta & Co 1998, p -220

• A R Chizikani Commercial law in Zimbawbwe, Word & Image Publications Harare,


2010 p261-271

• C Mucheche. Advanced Guide to Business Law in Zimbabwe. ALRD Zimlaw Net


publishers,
• C Mucheche, Commercial Law in Zimbabwe: Cases and materials ALRD Zimlaw
Net 2013, p106-111

Sharrock R., Business Transactions Law, 7th Ed, Juta & Co, Cape Town, 2002

8. THE LAW OF LEASE

The contract of lease will be discussed and students will get to distinguish it from any
other type of contract. Features of a contract of lease will be identified for both a long
and short term lease. Obligations of either part to the contract will be identified and
remedies available to each part in the event of breach will be discussed. Termination of
a lease agreement will be discussed.

8.1 Definition
8.2 Essential element under law of lease

8.3 Formalities & types of lease

7.3.1 Long lease (Longum tempus)

7.3.2 Short lease

8.4 Rent requirement

8.5 Implied duties of the lessor

8.5.1 To deliver property

8.5.2 To give guarantee of undisturbed use & enjoyment

-sofiantini v Mould
8.5.3 To make necessary repairs

8.5.4 To pay taxes

8.6 Implied duties of the lessee

8.6.11. Duty to pay rent

8.6.2 Duty of use & care of the property

8.6.3 Duty to restore the property

8.7 Subletting & Assignment

8.8 Termination of lease

8.8.1 Expiration of time

8.8.2 Notice

8.8.3 Mutual cancellation

8.8.4 Repudiation

8.8.5 Extinction of title

8.8.6 Merger

8.8.7 Destruction of the subject matter

8.8.8 Death

Cases

-Birria Investiments (Pvt) Ltd v Art Deal (Pvt) Ltd & Anor HH-1749-108
-H & J Investiments (pvt) Ltd v Space Age Products (Pvt) Ltd 1987(1) ZLR 242
@252

-Film and Video Trust v Mahovo Enterprises (Pvt) Ltd 1993 (2) ZLR (s)

-Marshall v Ivory 1951 SR 76 @81

-Salisbury Munispality v Partington and Sandler 1961 R&N 573

BOOKS

• A.J. Manase, L. Madhuku - A handbook on commercial Law in Zimbabwe

• R H Christie, Business law in Zimbabwe, Juta & Co 1998, p272-295

• A R Chizikani Commercial law in Zimbawbwe, Word & Image Publications Harare,


2010 p219-231

• R Matsikidze, Mechantile law in Zimbabwe: The law of hire, contract, agency and
sale. DP Print media, 2017 p89-103

• C Mucheche. Advanced Guide to Business Law in Zimbabwe. Zimlaw Net


publishers,

Sharrock R., Business Transactions Law, 7th Ed, Juta & Co, Cape Town, 2002

Assignment: With the aid of case law and other sources of law, discuss the seller's
duties. What remedies are available to the purchaser where latent defects are found in
a contract of sale? (30marks).

Due Date: 08 March 2019


NB: This is an individual assignment.

Plagiarism is a serious academic offence.

References

BOOKS

• A.J. Manase, L. Madhuku - A handbook on commercial Law in Zimbabwe

• R H Christie, Business law in Zimbabwe, Juta & Co

• R Matsikidze, Mechantile law in Zimbabwe: The law of hire, contract, agency and
sale. DP Print media, 2017

• C Mucheche. Advanced Guide to Business Law in Zimbabwe. Zimlaw Net


publishers,

• Sharrock R., Business Transactions Law, 7th Ed, Juta & Co, Cape Town, 2002.

• J Scott et..al The law of commerce in South Africa Oxford University Press 2014

• Kerr A.J., The Law of Agency, Lexis Nexis Butterworths, Durban, 1991.

• Kahn E., Contract & Mercantile Law through Cases, 2nd Ed, Juta & Co, Cape
Town, 1985.

• P Havenga et..al The general principles of Commercial law , Juta 2014

• Norman’s Law of Purchase & Sale in South Africa, 5th Ed, Lexis Nexis, 2005

STATUTES

• Companies Act 24:03

• Private Business Corporations Act 24:11

• Insurance Act

• Bills of Exchange Act