ML 520
SEMESTER
CREDIT POINTS
CONCTACT HOURS PER WEEK
COMPULSORY COURSE IN
ELECTIVE COURSE IN
: ADVANCED LAW OF CONTRACT
: ONE
:4
: 5 (3 lectures and 2 seminars)
: LL.M (Commercial Law)
: NONE
COURSE DESCRIPTION
The world is now becoming a small village where contracts between parties are sometimes
formed online. This comes with new challenges in regulating the law and procedures on
formation of contract, practice, and how the rights of the parties to the contract are determined.
This course among other things will impose the challenges to the students on the current issues
that happen in the law of contract.
COURSE OBJECTIVES
This Course is intended to familiarize the students with the principles relating to Contracts in
general and the principles relating to Special Contracts. Further the objective of this Course is to
familiarize the students with the recent developments in contractual transactions, particularly in
the wake of electronic communications.
LEARNING OUTCOMES
After studying this Course the students should be able to understand the implications of
contractual transactions; and the nature of contractual remedies; and they should be able to apply
their knowledge to concrete contractual transactions.
MODE OF DELIVERY
Lectures, Seminars, and Term Paper
MODE OF ASSESSMENT AND EVALUATION
Assessment and Evaluation of the course will be through Assignment, Presentation, Controlled
Tests, and End of Semester Examinations as per Mzumbe University Student Assessment
Criteria By-Laws 2007 (as amended from time to time)
READING LIST
STATUTES
LOCAL STATUTES
1. Law of Contract [Act Cap 345]
2. Sale of Goods Act [Cap 214]
3. The Public Procurement Act [No 3 of 2001]
4. Electronic and Postal Communication Act [No 3 of 2010[
5. The Contractors and Registration Act [Cap 235 R.E. 2002]
6. The Standards Act [Cap 130 R.E. 2002]
7. The Employment and Labour Relations Act [Cap 218 R.E. 2004]
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8. The Arbitration Act [Cap 15, R.E 2002]
INTERNATIONAL INSTRUMENTS
1. (South Africa) Electronic Communications and Transactions Act, Act 25 0f 2002
2. East African Common Market Protocol on Law of Contract
3. United Nations Convention on the use of Electronic Communications in International
Contracts, Resolution 60/21 adopted by the General Assembly at 60th session
(December, 2005)
4. UNICITRAL Model Law on Electronic Commerce, Resolution 51/162 adopted by 85th
General Assembly at plenary meeting (December, 1996)
5. UNCITRAL Model Law on Electronic Signatures (UNCITRAL Model Law on E-Sign)
Resolution 56 / 80 adopted by the 85th plenary meeting of the General assembly
(December 12, 2001)
6. UNICITRAL Model Law on International Commercial Arbitration 1985
7. Principles of International Commercial Contract (UNIDROIT) 1994
8. Principles of European Contract Law 1998 (PECL)
9. United Nations Convention on Contract for the International Sale of Goods, (1980)
10. Electronic Communication Act, 2000 (UK)
REQUIRED READINGS:
BOOKS
CHESHIRE FITFOOT & FURMSTON’S: Law of contract USA, Oxford University Press.
Current edition
J POOLE Textbook on Contract Law New York, Oxford University Press Current edition
J POOLE Casebook on Contract Law, New York, Oxford University Press Current edition
NDITI NICHOLIOUS NGONDO: General principles of contract law in East Africa Current
edition
Treitel: Law of Contract, 8th edition, Sweet and Maxwell, London, 1991
ARTICLE (S)
Sizwe Snail: Electronic Contracts in South Africa - A Comparative Analysis: Journal of
Information Technology and Law 2008, Pretoria
RECOMMENDED READINGS
ANSON, W. R. Principles of the Law of Contract, USA, Oxford University Press
STONE, LAW OF CONTRACT, CAVENDISH PUB
BITSON J: Anson’s Law of Contract, Current Version
FURMSTON, M.P. Cheshire, Fifoot and Furmston’s Law of Contract, Butterworth’s London,
Current Version
NDITI NICHOLIOUS NGONDO, Law of Contract in E.A, Dar Es Salaam University Press
MILLER, A., Modern African Contract Cases, Current Version
MACNEIL, I.R Contracts in E.A, Current Version
IAN A., Studies in Contract, Current, Version
HODGIN, R.W, Law of Contract in E.A, Current Version
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CUNNIGTON, R & R. Stone, Text, Cases, and Material on Contract Law, Current Version
ONLINE SOURCES
Hague Conference on Private International Law, Choice of Court Agreements on Convention of
30 June 2005 (http://www.hcch.net/index_en.php?act=conventions.listing)
Snail S L, ‘Legal Ramifications of the use of Information Technology devices at the workplace’,
<www.bbatt.de>
United Nations Convention on the use of Electronic Communications in International Contracts,
Resolution 60/21 adopted by the General Assembly at 60th session (December , 2005)
www.unicitral.org/en-index.htm.
UNICITRAL, UNICITRAL Model Law on Electronic Commerce with Guide to Enactment, Part
I, Resolution 51/162 adopted by 85th General Assembly at plenary meeting (December, 1996),
<www.unicitral.org/en-index.htm>.
UNCITRAL, UNCITRAL Model Law on Electronic Signatures (UNCITRAL Model Law on ESign), Resolution 56 / 80 adopted by the 85th plenary meeting of the General assembly
(December 12, 2001), www.uncitral.org/en-index.htm
Werkmans Inc. (2005) Business guide to electronic commerce and the law, p 11 (accessed on the
22nd September 2006 at <http://www.werksman.co.za>)
COURSE CONTENT
1. NATURE AND SCOPE OF THE LAW OF CONTRACT:
A. Meaning and Definition of Contract;
B. Contracts and Agreements; elements of differences in contracts and
agreements
C. Evolution of the Law of Contract;
D. Subjective and Objective approaches in law of contract formation;
E. International contract law versus domestic contract law: meaning and
Features
2. THE ROLE OF COMMON LAW COURTS IN THE DEVELOPMENT OF LAW
OF CONTRACTS,
A. Doctrine of Freedom of Contract in Common Law;
B. Sanctity of Contract;
C. Good faith in English contract law;
D. Theories of Contract, Subjective and Objective Theories of Contract.
3. CONTENT OF THE CONTRACT AND PRINCIPLES OF INTERPRETATION
A. Pre-contractual statements: terms or mere representations?
B. Incorporation of terms
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C. Interpretation of contracts: a move from literal to ‘matrix of fact’ -Parole evidence
Rule
4. GOVERNMENT CONTRACTS AND THIRD PARTY ISSUES
A. Procurement Contracts: Procurement protocols and The Public Procurement and
Public Finance Act (2001)
B. Employment contracts
5. ELECTRONIC CONTRACTS
A. The concept of Electronic commerce
B. Negotiating Different Types of E-contracts,
C. Electronic signature
D. Electronic Emails v Postal rule of acceptance,
C. Admissibility in evidence of electronic emails in civil cases,
D. Problems regarding evidence in the enforcement of electronic contracts;
Jurisdictional problems; national laws and the relevance of international
agreements; Enforcement of Electronic contracts
6. SPECIAL CONTRACTS
A. Contract of Sale of Goods:
B. Contract of Agency and Partnership
C. Contract of Bailment
7. DISCHARGE OF CONTRACT
A. by performance,- contract performance and risk allocation
B. by agreement, by breach, by frustration/ subsequent impossibility
8. REMEDIES
A.
Discharge
B.
Damages –Measure of damages, alternative recovery theories under UCC
C.
Remedies in equity
D.
Declaration, Anton Pillier & Mareva Injuction
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