Tutorialspractice questions docx

Commercial Law Tutorial Questions
1. a. Define/explain the following legal concepts;
i. Legal subjectivity.
[1]
ii. Ration decidendi.
[1]
iii. Merx.
[1]
iv. Cession.
[1]
v. Delegated legislation.
[1]
vi. Damages.
[1]
vii. Wrongfulness.
[2]
viii. Ostensible authority.
[2]
viii.Damages.
[2]
ix. Consensus.
[2]
x. Contractual capacity.
[2]
( xi) Common law.
[2]
(xii) Mora Debitoris.
[2]
(xiii) Civil law.
[2]
Explain the principle of reasonable man as applied in the law of delict.
[5]
Fully distinguish between essentialia and naturalia of a contract.
[5
b. In Van Breda v Jacobs 1921 AD 330, the then South African Appellate Division sets out
FOUR (4) requirements that a custom must meet before it acquires the force of law. Fully
outline these requirements.
[4]
2. J, a 17 year old student agrees to her car which he inherited from his late uncle to P, a
50 year old motor mechanic. The parties agreed that the purchase price was ZWL 3
500.00. Paul paid ZWL2 000.00 as deposit and the balance was to be paid in two equal
instalments. However, when P brought the last of the instalments, J refused to deliver
the car to him.
a. With reference to legal authorities, advice P of his rights, if any, against J.
[2]
b. Explain whether your response to (i) would differ under the following circumstances;
ii. J was 18 years old.
[1]
ii. J was married.
[1]
iii. J was assisted by her father in entering into the contract with P.
[1]
3. X bought a horse and cart from Y. The parties agreed that the purchase price was to
be paid in 3 equal weekly instalments. They further agreed that Y would remain the
owner of the horse until the last instalment was made. After the first instalment, the
horse died. Y demanded the balance from X.
Explain whether Y is entitled to the balance.
[5]
4. P purchased a house from Q. The contract contained a clause to the effect that the
house was sold voetstoots. During the rainy season, P discovered that the roof leaked
water.
Fully discuss whether there are any remedies available to P.
[5]
5. B is employed as a general manager by C who runs a general dealership in Chinhoyi.
B’s duties include procuring goods for the business. Sometimes in January 2019, C
instructed B to buy a truck for the business. B bought a truck from D for ZWL 5 000.00.
He further bought four spare wheels, a wheel jack and a trailer. The additional items
costed ZWL500.00. B showed the items to C who ordered him to put them to use
immediately. D the raised an invoice with C after 2 weeks and C refused to pay for the
additional items arguing that he never instructed B to buy them.
Discuss the legal position of B and C in respect to the additional items.
6.
Explain
[5]
the
landlord’s
tacit
hypothec
and
circumstances
[5]
it
apples.
7. F, a farmer, owns large tracts of land. The larger portion of the farms has been lying
idle for some years. The grass on the idle portion had overgrown. Adjacent to the farm
is a settlement made up of several small plots used for commercial small scale farming.
One October afternoon a fire started on F’s property and spread to the adjacent plots
where it caused extensive damage to property. One of the owners of the damaged
property is contemplating taking action against F.
Assess the chances of success in the contemplated lawsuit.
[5]
9 On 20 August 2019, C and D agreed that C would sale his house to D for a price of
ZW$ 220 000.00. On 24 August 2019, D paid an amount of ZW$20 000.00 towards the
purchase price and thereafter C handed over the house keys. However, when D went
to the house he found that there were tenants in occupation who had a lease
arrangement with C that was to expire after three months.
(i) With reference to principles of law of contract of purchase and sale, explain whether
C had breached her duties as a seller.
[5]
(ii). With reference to the law of lease, explain whether D can evict the tenants from
the house.
8. Discuss the effects of minority on contractual capacity.
[5]
9. A advertised for the sale of rhino horn artefacts and stated that the price was
ZW$2 000.00 for each artefact. The law makes it illegal to offer or sale such
artefacts. A was arrested and prosecuted. In his defence, A argued that he
merely advertised but did not offer for sale in contravention with the law.
With reference to legal authority discuss the validity of A’s arguments.
[5]
10. (a).Identify and explain the three (3) essential elements of a contract of lease [15].
(b). Juu and Puu are long-time friends. They grew up together having attended the
same primary and high schools. One day whilst they were drinking beer at the local
bar, Juu said to Puu that he was selling his car, a 200 Mercedes benz for ZWL 2 000.00.
Puu indicated that he was very much interested in buying the car at that amount. The
following morning Puu went to Juu’s house and handed him the ZWL2 000.00. Juu
was surprised by the gesture and inquired as to the purpose of the money to which
Puu answered that it was the purchase for the car that he had sold to him. Juu said he
does not remember selling his car to him and insisted that he never signed anything
to that effect.
With reference to legal principles, discuss whether there was a valid contract between
the two parties.
[8]
10. (a). A entered into an arrangement with B in terms of which A agreed to let B
use his premises situated in the low density residential area of Orange Groove
in Chinhoyi. He premises where previously occupied by X who used them as
his residence. B upon taking occupation of the premises erected some swings
and decorated them. He then enrolled kids who were of pre-school going age.
A never bothered to visit the leased premises as he worked in South Africa.
However, during the festive season A visited Chinhoyi and was surprised to
see his premises had been converted into a pre-school.
Discuss whether A can take any action B and the basis upon which such action can be
taken.
[12]
(b). B, who deals in cellular phones and accessories, bought a container full of cell
phone accessories from S who was in China. S had an agent in Zimbabwe and the
agent handed over the bill of lading to B when the container was in transit. However,
reaching the dock, the ship ferrying the container was high -jacked. B had not fully
paid for the goods and S demanded the balance.
With reference to legal authority, explain whether S would succeed in his claim
against B.
[8]
12. (a). Directors of a company owes the company fiduciary duty. Fully explain the
key features of this duty.
[15]
(b). Explain the lessor’s duty to warranty against interference under the law of lease.
[5]
13.
(a). Fully outline the principal’s duties under the contract of agency.
[15]
(b). Mrs X regularly buys meat from Y, the local butcher. On a particular day, she telephones
meat. When Y delivered the meat, he then mentioned that the purchase price was the ‘usual
price.’
With reference to legal authorities, discuss whether there was a valid contract of purchase
and sale between the parties?
[5]
14. (a). F, a famer sold 2000 tonnes of maize to M, a miller. The agreement was entered
into on the 1st of January 2019. The parties agreed that delivery was to take place on
or before the 15th of January 2015. On the 10th of January, F weighed the 2000 tonnes
of maize and distinctly marked and set them aside for M. On the 13th of January the
government introduced an additional duty on maize.
With reference to case law, discuss the parties’ liability for the additional duty.
[8]
(b). Jah and Gizha agreed that Jah would supply Gizha with certain recreational drugs
(mbanje). Jah deals in illicit drugs such as mbanje. Gizha paid Jah ZWL 2 000 for the
drugs that he intended to repackage and for resale.However, Jah failed to make the
delivery of the drugs as per the parties’ agreement.
Gizha wishes to take legal action Jah for breach of a contract. With reference to
applicable legal principles relating to the law of contract, advice Gizha on whether he
can successfully institute any legal action against Jah for breach of contract. [12]
15. (a).Fully distinguish between essentialia and naturalia of a contract.
[5]
(b). (b). Mrs X regularly buys meat from Y, the local butcher. On a particular day, she
telephones meat. When Y delivered the meat, he then mentioned that the purchase price was
the ‘usual price.’
With reference to legal authorities, discuss whether there was a valid contract of purchase and
sale between the parties?
[5]
16. (a).Identify and explain the three (3) essential elements of a contract of lease
[6].
(b) In Van Breda v Jacobs 1921 AD 330, the court stated that for a custom to acquire the
force of law it must meet certain requirements. Briefly discuss these requirements.
[4]
17. a. XYZ (Pvt) Ltd, a jewellery shop, was robbed of some precious jewellery. A
went to a local police station and provided information relating to the robbery. The
following day, ZXY placed a note in a local newspaper stating that any person who
provides information leading to arrest of the robbers would be rewarded. The police,
acting on A’s information, apprehended some suspected who were later convicted of
the robbery. A then demanded the reward from XYZ arguing that he had accepted the
offer and there was a contract between him and the company.
Discuss the validity of A’s claims.
[5]
(b). Juu and Puu are long-time friends. They grew up together having attended the
same primary and high schools. One day whilst they were drinking beer at the local
bar, Juu said to Puu that he was selling his car, a 200 Mercedes benz for ZWL 2 000.00.
Puu indicated that he was very much interested in buying the car at that amount. The
following morning Puu went to Juu’s house and handed him the ZWL2 000.00. Juu
was surprised by the gesture and inquired as to the purpose of the money to which
Puu answered that it was the purchase for the car that he had sold to him. Juu said he
does not remember selling his car to him and insisted that he never signed anything
to that effect.
With reference to legal principles, discuss whether there was a valid contract between
the two parties.
[5]
18. (a). A entered into an arrangement with B in terms of which A agreed to let B use
his premises situated in the low density residential area of Orange Groove in
Chinhoyi. He premises where previously occupied by X who used them as his
residence. B upon taking occupation of the premises erected some swings and
decorated them. He then enrolled kids who were of pre-school going age. A never
bothered to visit the leased premises as he worked in South Africa. However, during
the festive season A visited Chinhoyi and was surprised to see his premises had been
converted into a pre-school.
Discuss whether A can take any action B and the basis upon which such action can be
taken.
[5]
(b). B, who deals in cellular phones and accessories, bought a container full of cell
phone accessories from S who was in China. S had an agent in Zimbabwe and the
agent handed over the bill of lading to B when the container was in transit. However,
reaching the dock, the ship ferrying the container was hijacked. B had not fully paid
for the goods and S demanded the balance.
With reference to legal authority, explain whether S would succeed in his claim
against B.
[5]
19. (a). F, a famer sold 2000 tonnes of maize to M, a miller. The agreement was entered
into on the 1st of January 2019. The parties agreed that delivery was to take place on
or before the 15th of January 2015. On the 10th of January, F weighed the 2000 tonnes
of maize and distinctly marked and set them aside for M. On the 13th of January the
government introduced an additional duty on maize.
With reference to case law, discuss the parties’ liability for the additional duty.
[5]
(b). Jah and Gizha agreed that Jah would supply Gizha with certain recreational drugs
(mbanje). Jah deals in illicit drugs such as mbanje. Gizha paid Jah ZWL 2 000 for the
drugs that he intended to repackage and for resale.However, Jah failed to make the
delivery of the drugs as per the parties’ agreement.
Gizha wishes to take legal action Jah for breach of a contract. With reference to
applicable legal principles relating to the law of contract, advice Gizha on whether he
can successfully institute any legal action against Jah for breach of contract.
[5]
20. (a) . A, a small scale commercial farmer, met B who claimed that he is able to
supply various agro-chemicals at relatively cheap prices. A resides at her farm in
Norton whereas B is from Harare. The two met at Mashonaland West Agricultural
Show held in Chinhoyi. A indicated that she requires some selective herbicides for her
10 hectares of vegetables. B provided A with his banking details and A deposited an
amount of ZWL2 000.00 for the herbicides. However, B failed to supply the herbicides
as agreed and A is contemplating suing him for breach of contract. A is not sure as to
which court must she use to sue B and seeks your advice.
Using the information provided above, advice A on the court that she must use to sue
B. Your advice must fully explain the basis for selecting the preferred court.
[6]
(b).X bought a horse and cart from Y. The parties agreed that the purchase price was
to be paid in 3 equal weekly instalments. They further agreed that Y would remain
the owner of the horse until the last instalment was made. After the first instalment,
the horse died. Y demanded the balance from X.
Fully explain whether Y is entitled to the balance.
[8]
(c). Explain the landlord’s tacit hypothec and circumstances it applies.
[6]
21.. generally a contract is formed by an offer and acceptance. With reference to
relevant authority, outline the requirements for an acceptance to constitute a valid
contract.
[10]
(c). Explain the requirements for voluntary sequestration.
[4]
22. J, a 17 year old student agrees sell her car which he inherited from his late uncle to
P, a 50 year old motor mechanic. The agreed purchase price was ZWL5 500.00. P paid
ZWL2 000.00 as deposit and the balance was to be paid in two equal instalments.
However, when P brought the last of the instalments, J refused to deliver the car to
him.
(i). With reference to legal authorities, advice P of his rights, if any, against J.
(ii). Explain whether your response to (i) would differ under the following circumstances;
[2]
(aa). J was 18 years old.
[2]
(bb). J was married.
[2]
(cc). J was assisted by her father in entering into the contract with P.
[4]
23. (a). F, a farmer, owns large tracts of land. The larger portion of the farms has been lying
idle for some years. The grass on the idle portion had overgrown. Adjacent to the farm is a
settlement made up of several small plots used for commercial small scale farming. One
October afternoon a fire started on F’s property and spread to the adjacent plots where it
caused extensive damage to property. One of the owners of the damaged property is
contemplating taking action against F.
With reference to legal principles and supporting your arguments with legal authorities,
assess the chances of success in the contemplated lawsuit.
[10]
(b). The contract of lease creates rights and duties for both the lessee and lessor. Fully explain
the lessor’s duties towards the lessee.
[10]
24. All contracts are agreements but not all agreements are contracts. Discuss this statement
with reference to the elements of contractual validity.
[20].
25. Study the following and answer the questions that follow;
1. Mr. operates a general dealership. He owns a building that is situated at the local
business centre which houses a grocery shop, a bottle store as well as a grinding mill.
2. The building was financed from a loan obtained from the local bank, XYZ Building
Society.
3. The initial loan amount was ZWL$80 000.00 and up to date he had repaid an amount
of ZWL$25 000.00. The loan amount was secured by way of a mortgage bond
registered over the building.
4. The grinding mill was purchased from ABC Engineers for ZWL$20 000.00. Mr.T
paid a deposit of ZWL$10 000.00 and then two equal instalments of ZWL$3 000.00
each. The balance is still outstanding.
5. As part of his business, Mr.T sells merchandise on credit to selected customers. Mrs
Y, a local poultry farmer, is one of his clients. He supplied her with 500 kg of chicken
feed valued at ZWL$2 000.00 and is yet to receive payment for the merchandise.
6. He also supplied the local school with stationery worth ZWL$4 000.00 and is ye to
be paid.
7. The business employees 8 workers. Jack, the grinding mill operator recently passed
away. Mr.T last paid his employees in March 2019 and he collective owes those ZWL
$ 4 000.00 in salary arrears.
8. His owes the tax authorities ZWL$ 5 500.00 in unpaid taxes.
9. He had not contributed towards social security for his employees for six months
and as such his account is in arrears to the tune of ZWL$ 7 000.00.
10. Mr.T had an arrangement with the local brewery in terms of which the brewery
supplies his bottle store with beer and payment would be made at the end of each
month. For the past three months, Mr.T had not made any payment to the brewery
despite the deliveries.
11. Owing to high costs of running the beer brewing business, the brewery owners
wrote to Mr.T about the matter. He responded that he was very much aware of the
debt and was working on it. However, no payment was made.
12. The brewery then engaged legal practitioners who wrote a formal letter of demand
to Mr.T but he still could not make the payment. The brewery, through its legal
representatives had decided to institute legal proceedings in order to have Mr.T
declared insolvent.
With reference to legal authorities;
(a) Explain whether there are valid grounds upon which the brewery can institute
proceedings to have Mr.T declared insolvent?
[5]
(b) Outline with reasons , the order of preference for paying the creditors of Mr.T
should he be sequestrated.
[15]
Explain with reference to decided cases, whether there is a contract in each of the given
situations.
(a) X, went to an auction intending to purchase household goods. Y, the auctioneer,
pointed towards a double bed and X made the highest bid for the goods. However,
before Y lowered his hammer, X he withdrew his bid. [5]
(b) A shopkeeper displayed a flick knife with a price tag in the window. The Restriction of
Offensive Weapons Act 1959 made it an offence to ‘offer for sale’ a ‘flick knife’. The
shopkeeper was prosecuted in the court but was found not guilty.
It was held that the knife had not been ‘offered for sale’.
Displaying an article with a price in a shop merely an invitation to treat and not an offer for
sale.
(c) The plaintiffs sent a telegram to the defendant, “Will you sell Bumper Hall Pen? Telegraph
lowest cash price”. The defendants reply was “Lowest price £900”. The plaintiffs telegraphed
“We agree to buy… for £900 asked by you”.
It was held by the Privy Council that the defendants telegram was not an offer but simply an
indication of the minimum price the defendants would want, if they decided to sell. The
plaintiffs second telegram could not be an acceptance.
(d) 2 Sept. The defendant wrote to the plaintiff offering to sell goods asking for a reply “in the
course of post” 5 Sept. The plaintiff received the letter and sent a letter of acceptance. 9 Sept.
The defendant received the plaintiff’s acceptance but on 8 Sept had sold the goods to a third
party. It was held that a binding contract was made when the plaintiff posted the letter of
acceptance on 5 Sept, so the defendant was in breach of contract.
[20]
26.(a) Fully distinguish between implied and express contractual terms.
[5]
(b). Explain the reasonable man test applied in the law of delict.
[5]
27. D. Indicate whether the following statements are TRUE or FALSE.
i. Breach of a contract is a criminal offense in Zimbabwe.
ii. Married woman are considered as minors and lack contractual capacity under
Zimbabwean law.
iii. Customary law is only applied at village level.
iv. Negligence entails breach of a duty of care.
v. A tenant can use a lease property only a defined by the terms of the lease or for
purposes the property was being used prior to the lease.
vi. Rentals for the leased property can be paid in form of fruits of the said property.
vii. A contract of purchase and sale can still be valid even if the parties have not
reached an agreement as to transfer of ownership.
viii. A contract between a minor and a major is void.
ix. A contract of purchase and sale is still valid even if the parties agrees that the
purchase will have to include certain items as part of the purchase price.
x. The highest court in Zimbabwe is called the Supreme Court.
27. Directors of a company owes the company fiduciary duty. Fully explain the key
features of this duty.
…