Moffat Mungazi
Trust Maanda
Legal Position
WHEN parties enter into a contract, the expectation is that each of the parties will perform their duties as agreed.
Where one party breaches the contract, the innocent party may be entitled to claim damages as remedy for the breach, among other remedies that may be available to it at law.
It is trite that an aggrieved party to a contract is entitled to claim damages arising from the other contracting party’s breach of contract.
The rationale for awarding damages to an aggrieved party based on a breach of contract is to place that party in the position he would have occupied had the breach not occurred.
This is achieved by the payment of money and without causing undue hardship to the defaulting party.
A comparison is made between the position in patrimony that the plaintiff would have occupied had the breach not occurred and the position that exists as a result of the breach.
The innocent party must be compensated for the loss of what he or she would have earned except for the breach of contract.
Damages put the party in a position he or she would have occupied if the contract would have been performed.
In a claim for damages arising out of breach of contract, the plaintiff has to be placed in the same position he would have been in had the contract been properly performed.
For example, a party who sells a thing to another and fails to deliver the thing to the innocent party is liable to pay damages to the innocent party, equivalent to the value of the thing not delivered.
An assessment of damages for breach of contract is fraught with difficulty.
A plaintiff who sues for damages is required to prove his damages.
A court will not presume damages in the absence of proof of such damages by a plaintiff.
However, the principle that a plaintiff must prove his damages is not a strict rule: what is required of a plaintiff is to place before the court all the evidence that is reasonably available to him.
Before this principle can come into effect it must be established that the plaintiff has suffered some damages and that all that has to be established is the quantum of those damages.
There are many types of claims due to breaches of contract which do not admit, for various reasons, of strict or detailed proof in terms of so much money.
For example, loss of business, especially in relation to the future.
One can claim damages for breach of contract for loss of future profits.
In Ebrahim v Pittman N.O. 1995 (1) ZLR 176H at 187C-D Bartlett J quoted with approval the remarks of BERMAN J in Aarons Whale Rock Trust v Murray & Roberts Ltd & Anor 1992 (1) SA 652(C) at 655H-656F to the following effect: “Where damages can be assessed with exact mathematical precision, a plaintiff is expected to adduce sufficient evidence to meet this requirement. Where, as is the case here, this cannot be done, the plaintiff must lead such evidence as is available to it (but of adequate sufficiency) so as to enable the court to quantify his damage to make an appropriate award in his favour. The court must not be faced with an exercise in guesswork; what is required of a plaintiff is that he should put before the court enough evidence from which it can, albeit with difficulty, compensate him by an award of money as a fair approximation of his mathematically unquantifiable loss . . .”
This means in a claim for damages, the plaintiff must prove that he suffered damage as a result of the defendant’s breach.
The primary purpose of contractual damages is the compensation for the non-fulfilment of its terms.
It is a sum of money paid to the innocent party in compensation for a breach of contract, and is meant to place the plaintiff in the position he would have been in if the contract had been performed.
An innocent party can claim damages for loss of profit where there is breach.
A claim for damages in the form of loss of profits are in the form of general damages.
Such damages only are awarded as flow naturally from the breach, or as may reasonably be supposed to have been in the contemplation of the contracting parties as likely to result therefrom.
Damages should be a contemplated result of non-performance by the part in breach.
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.
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