Online Reporter
Trust Maanda
Legal Position
FORMATION of contracts is an everyday thing. Every day you enter into contracts even though they may not be written.
For example, every purchase of a thing you make is a contract, every boarding you do of vehicle for hire, you are entering into a contract.
Every time you make a promise to someone to marry them, you are entering into a contract.
There are important contracts that you may enter into, and these require that the terms and conditions be clear in order to avoid trouble that will arise out of the contract.
Problems often arise if a contract does not have solid terms.
Contracts help set the stage for long-term implementation or performance of the same.
Creating a contract therefore requires a proper approach. Otherwise, it is possible to omit vital elements or terms.
You need to research on the subject area before you draft a contract.
Contract drafting must come from a place of knowledge of the subject matter. For example, when you are drafting a building or engineering contract, there are obvious terms and conditions that a layman may not include because of lack of expertise in the field.
Failure to address essential issues may be due to one’s lack of a thorough understanding of the relevant industry.
Another thing to be wary of is lack of clarity.
Lack of clarity leads to vagueness of the agreement.
A contract which is vague is void for vagueness. For example, in an agreement of a loan, you must stipulate when the loan must be paid back.
You do not just state that “the debtor will pay back the loan when he or she is back on his or her feet financially”.
What ‘back on his or her feet financially” means is vague and does not state what being back on feet will entail.
A debtor will keep telling you: “I am not yet on my feet”. You cannot go to court to claim that he or she is in breach of a term of the contract.
I heard someone in the United Kingdom where he was staying with his girlfriend, saying his girlfriend told him she would love him “until forever comes”.
Later she stopped loving him.
He discovered that “Forever” was her boyfriend whom she had left in Zimbabwe, and had come to the United Kingdom.
She loved until ‘Forever’ came.
There was vagueness as to who “Forever” and what his coming was!
She was right because she only stopped loving when Forever came!
It is a funny way to illustrate the point that agreements must remove vagueness and ambiguity.
Any ambiguity is a source of misunderstanding.
The terms and stipulations in the contract must be clear and eliminate any room for misinterpretation.
For example, if it is a contract of the supplying of services, the parties must agree on remuneration rather than just mention that the parties agree to a fair and reasonable remuneration for the work done, leaving the question of such remuneration open ended.
Courts may regard such as valid, but to avoid problems, it is best to stipulate the remuneration.
In stating this, I am mindful of the approach by the courts to endeavour to help the parties in the enforcement of their agreement.
As was held in Chikoma v Mukweza 1998(1)
ZLR 541(S): “The approach that the courts will adopt to the issue of whether a contract is void for vagueness will be to help the parties towards what they both intended rather than obstruct them by legal subtleties and allow one of the parties to escape the consequences of all he has done and all he has intended. The courts will interpret contracts fairly and broadly, without being quick to find defects, following the principle ut res magis valeat quam pereat.” (an agreement intended as a contract should be given effect as far as possible).
Do not just cut and paste what you find on the internet or adopt agreements prepared by Artificial Intelligence (AI).
For example, the language may not reflect applicable or current law.
It is better to start from scratch to put up an agreement. This makes it more likely that the agreement will be as the parties intend.
The contract must also address how conflicts must be resolved when one party breaches it or if genuine disagreement arises.
Some clauses should state that dispute resolution mechanism such as what would happen in the event of breach.
A contract must protect businesses from a lot of disagreements. You need to make sure your legal agreements cover every critical matter.
These and many others are things that are blind spots to watch in contract drafting. The list is in-exhaustive, but time fails me.
Make sure that the contract contains every necessary provision which is clear and not susceptible to ambiguity.
Trust Maanda is a legal practitioner and a partner at Maunga Maanda And Associates. He writes in his personal capacity. He can be contacted on +263772432646.
