CHAPTER SIX LAW OF CONTRACT After studying this chapter, you should be able to: Define the term contract and understand the essential elements of a contract Understand the different ways of discharging the contract Distinguish void and voidable contract Explain the different remedies under the law of Contract INTRODUCTION. A contract is an agreement between two parties which is enforceable by law. An agreement is made when a person signifies his willingness to do or to abstain from doing anything with a view of obtaining the assent of the other party. Such act or abstinence is said to make a proposal. The person making the proposal is called the promisor and the person accepting the proposal is called the promisee. Every promise and every set of promise forming consideration for each other is known as agreement. Promises which form the consideration or part of the consideration for each other are called reciprocal promises. An agreement not enforceable by law is called void agreement. An agreement enforceable by law at the option of one party and not at the option of the other party results into a voidable contract. Hence to make an agreement into a contract, the following has to happen. - Agreement between the parties. - Creation of responsibilities between the parties. - Enforceability by law. Anson, a famous jurist thus defines a contact as “An agreement enforceable by law made between two or more persons by whom rights are acquired by one or more to act or forbearance on the part of the other or others”.
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CHAPTER SIX
LAW OF CONTRACT
After studying this chapter, you should be able to:
Define the term contract and understand the essential elements of a contract Understand the different ways of discharging the contract Distinguish void and voidable contract
Explain the different remedies under the law of ContractINTRODUCTION.A contract is an agreement between two parties which is enforceable by law. An agreement is made when a person signifies his willingness to do or to abstain from doing anything with a view of obtaining the assent of the other party. Such act or abstinence is said to make a proposal. The person making the proposal is called the promisor and the person accepting the proposal is called the promisee. Every promise and every set of promise forming consideration for each other is known as agreement. Promises which form the consideration or part of the consideration for each other are called reciprocal promises.
An agreement not enforceable by law is called void agreement. An agreement enforceable by law at the option of one party and not at the option of the other party results into a voidable contract. Hence to make an agreement into a contract, the following has to happen.
- Agreement between the parties.- Creation of responsibilities between the parties.- Enforceability by law.
Anson, a famous jurist thus defines a contact as “An agreement enforceable by law made between two or more persons by whom rights are acquired by one or more to act or forbearance on the part of the other or others”.
TYPES OF CONTRACTS:Contracts may be classified into:-Written (Specialty Contracts)- Contracts requiring written evidence- Simple contracts.Written Contracts.These are contracts which the law insists must be written. The must be embodied in a formal document e.g.
- Under Sec. 6(2) of the Hire Purchase Act; Cap 507, a hire purchase agreement must be written.
- Under Sec. 2(1) of Marine Insurance Act, a contract of Marine Insurance must be written.- Contracts of sale of land are equally required to be written.
Contracts Requiring Written Evidence.These are contacts which must be evidenced by some note or memorandum. Such note or memorandum must:
- Describe the parties sufficiently to identify them- Describe the subject matter- State the consideration (what is payable)- Contain the signatures of the parties.
Such contracts include:- Contract of guarantee- Contract of insurance etc.
Simple Contracts.These are contracts whose formation is not subject to any legal formalities. The contract may be oral, written or implied from the conduct of the parties e.g.
- Contract of sale of goods- Partnership agreements etc.
SOURCES OF LAW OF CONTRACT.Under Section 2(1) of the Law of Contract Act, Cap. 21 Laws of Kenya, the sources of the law in Kenya are:- Substance of Common law- Doctrines of Equity- Other statutes.ESSENTIAL ELEMENTS OF A CONTRACT.All agreements are contract when made out of free consent of parties competent to contract, with lawful consideration, lawful object and which are not thereby declared void.The following are elements of a contract.
Offer Acceptance Intention to create a legal relationship. Lawful consideration. Capacity to contract. Free consent. Lawful object. Legal formalities. Possibility of performance. Not expressly declared to be void.
OFFER A contact comes into existence when a definite offer has been unconditionally accepted. Mode: The offer can be made orally, in writing, or impliedly provided that the mode of offer or acceptance is in tandem with any statutory requirements as to form e.g. Contract for sale of Land need to be in writing.
Definition: When a person signifies his willingness to do or to abstain from doing anything with the view of obtaining the assent of the other to such act or abstinence, he is said to make a proposal. The person proposing is also called an offeror or a promissor. The existence or otherwise of an offer may sometimes be the source of an acute dispute between parties. These has often occurred in cases where a person did or said something which another understood to be an offer and consequently proceeded to ‘accept. In the course of settling such disputes, the courts have explained that such ‘offer’ are apparent rather than real and that the thing done or statement made amounted to no more than an invitation to treat or a declaration of intention.
Following are examples invitation to treat:a. A registered company issues a prospectus pursuant to provisions of the companies Act,
asking the public to subscribe for the company’s shares. If a person applies for any shares in response to the prospectus, the application will be the offer. The issue of the prospectus was legally an invitation to treat, although it appeared to be an offer of the specified shares to the public for acceptance.
b. A government ministry puts an advertisement in the newspaper for tenders for the supply of a specified quantity of goods during a certain period of time the advertisement constitutes an invitation to treat. A trader’s response to the invitation will be the offer.
c. A trader displays goods in his shop window with a price label on each of them. The display is another species of invitation to treat.
Characteristics / Requirements / Legal rules regarding offer.- May be express or implied.- Offer must give rise to a legal obligation.- Terms of offer must be definite and certain i.e. should not be vague, uncertain or
ambiguous- An offer must be distinguished from an invitation to offer, or declaration of intention e.g.
an advertisement.- The offer must be communicated. - An offer may prescribe the method of communication of acceptance thus becomes a
conditional offer.- An Offer must be made with a view of obtaining the consent of the other party to do so or
abstain from doing the particular act.- Offer should not impose an unnecessary obligation to communicate non-acceptance e.g.
“If acceptance is not communicated by next Sunday, I shall presume that you have accepted”.
- May be specified or general i.e. con be made to a particular person hence no other person regardless of his merit can be tolerated, or can even be general in that any person who meets the conditions can signify his assent.
SPECIES OF OFFER:Following are other manner in which offer exists.
CROSS OFFER.
Occasionally two parties make similar offer to each other without knowing that same offer has been made by the other party. In such a case no binding contract will have been created since none has specified has acceptance to another.
COUNTER OFFER.This is a change, variation or modification of the terms of the offer by the offeree. It is a conditional acceptance and therefore not an acceptance in law. It is an offer in its own right and if accepted, an agreement arises between the parties. The legal effect of making a counter offer is that it terminates the original offer which thereby becomes incapable of acceptance unless revived.
. An inquiry does not change the terms of the offer and the offeree is free to accept the offer before or after the inquiry is responded to.
TENDER.A continuous offer is called a standing offer or a tender. When a tender is for supply of goods for example; is accepted, it still does not become a contract. It simply means that as to and when goods are required, an order will be placed. Placing of such order (requisition) becomes acceptance. Thus a standing offer does not become a contract until when an order according to terms of the tender is placed with the party which accepted the tender. Sometimes tenders are invited to the supply of a specific quantity of goods or services. When the tenders are accepted, it becomes a contract as a specific tender.
AUCTION.At auction sale, the auctioneer invites offers. The offer is made by the bidder and the auctioneer accepts the offer on the fall of the hammer.
ACCEPTANCE.When a person to whom an offer is made signifies his assent thereto, the offer is said to be accepted. An offer when accepted becomes a promise.Essentials of a legal acceptance.
- Acceptance should be by the person to whom the offer is made.- Acceptance may be express or implied i.e. express by word spoken or written or implied
by an act in line or in compliance.- Must be absolute or unqualified. I.e. acceptance in full. It would otherwise be a counter
offer.- Must be in the mode prescribed. If reply is required by a telegram and offeree accepts
replies by fax, it amounts to non-compliance.- Acceptance must be for an offer communicated.- Must be accepted within the time fixed.- Acceptance must be made before the offer lapses or is revoked.- Acceptance must be made with the intention to fulfill the terms.- Acceptance subject to a specialty contract would be valid only on the formal contract
being signed by all the parties.
REVOCATION OF OFFER AND ACCEPTANCE.Revocation means withdrawal or taking back the offer or acceptance. An acceptance can be revoked at any time before the communication of acceptance is complete as against the acceptor and not afterwards. An offer may be revoked at any time before the communication of its acceptance is complete as against the propossor and not afterwards.
When is communication of revocation complete?- As against the person who makes it when it is put into the course of transmission to the
person to whom it is made so as to be out of the power or the person who make it.- As against the person to whom it is made when it comes to his knowledge.
How does an offer come to an end? An offer comes to an end by revocation which may happen in various ways briefly explained below:
a. By notice. This is by sending a revocation message before acceptance is complete as against the offeror.
b. By lapse of time. This is if time was prescribed as an essential aspect of the contract. If time was not of essence, then reasonable time lapse will give it expiry.
c. By the failure of the acceptor to fulfill a condition precedent to acceptance e.g. be a Kenyan.
d. By death of the propossor if it comes to the knowledge of the acceptor before acceptance or before the offer is revoked.
d. By insanity of the propossor and if this comes to the knowledge of the acceptor before the offer is revoked or before acceptance is complete.
e. By counter offer: This is accepting the offer but suggesting an otherwise or new condition.
f. By not accepting the offer in the mode prescribed e.g. If it was to be communicated by telegram but instead the acceptor chooses to communicate his acceptance by ordinary mail. It remains at the option of the propossor to welcome the acceptance otherwise he may revoke it by sending message to that effect in reasonable time.
CONSIDERATION.The existence of consideration in promise signifies the commitment of parties to create a legal relationship. Furthermore; the law does not recognize an agreement to do something without anything in return. According to Pollock “Consideration is the price for which the promised of the other is bought” Hence no consideration no contract. Worth to note that consideration is something in return. It can take the form of loss, or responsibility given, suffered or undertaken by the other.
Definition: When at the desire of a promissor, the promisee or any other person has done or abstained from doing, does or abstain from doing something, such an act or an abstinence or promisee is called consideration for the promise.
CLASSIFICATION OF CONSIDERATION
Consideration may be executory or executed.a. Executory Consideration.This consists of a promise made by one party and promise made by the other party to the contract.Examples:
i. An unmarried man and a lady agree to be married in the near future. Although nothing has been done yet, there is a contract to marry between them. For the moment, they exchange their promise.
ii. Mss. A goes to Mr. B’s shop on the tenth day of the month and asks Mr. B- a tailor to make a suit for her as she promises to pay at the end of the month. He takes her measurements and promises to have the suit ready on the last day of the month. Here Mss A’s promise is the consideration for Mr. B and vise versa, the price for each other’s promise
b) Executed Consideration.Executed consideration is constituted by something done by the plaintiff because of a promise made by the defendant.Examples:
(i) If in example a. (ii) above Mss. A had paid for the suit in advance, the payment would be the executed consideration for Mr. B’s promise.(ii) Mutiso puts an advertisement in the local newspaper that he has lost his goat of a certain description, and promises to pay Kshs. 200/= to anybody who returns it. Munene reads the advertisement, goes to look for the goat, finds it in the bushes nearby and returns it to Mutiso. Here what Munene has done is what constitutes the executed consideration required to make Mutiso’s promise (executory consideration) binding on him.
Legal rules regarding consideration.a. Consideration must be at the desire of the promissor i.e. it is at the request of the
promissor otherwise its common sense that nobody would be held liable for what he did not tell you to do.
b. Consideration may be past, present or future so long as it is co-extensive and basis upon which the other party’s promise is obtained. I.e. it should consist in a single transaction with the promise to the other. In Roscarla Vs. Thomas, Roscarla bought a horse and paid for the price. After which, Thomas made statements to her to the effect that the horse was sound in wind and limb, perfect in vision and free from vice. Whereas the horse was vicious. This stipulation was unenforceable as it was after sale, i.e. after consideration made.
c. Consideration must not be ambiguous impossible uncertain, fraudulent, immoral, illegal, or opposed to public policy i.e. it must be lawful.
d. Consideration need not be adequate. It need not be full return for the promise provided it is something rather than nothing in the eye of the law. So long as consideration is real and sufficient to the bargain, it need not be adequate. The court will not allow anyone to plead that he made a bad bargain.
e. Consideration must move from promisee. This means that only the person who has personally given consideration for a promise can sue for breach of performance. A person
who has not given consideration for a promise is a stranger to consideration. It is a canon principle of law that one cannot claim something for nothing.
Therefore only a party to contract can sue. This introduces the principle of privity of contract.
PRIVITY OF CONTRACT.A stranger to contract cannot sue because it is a cardinal principle of law that only a party to contract can sue. To create a legal relationship, privity of contract (contractual relationship) is necessary. However, if this were strict position of law some considerable havoc would result. The law therefore recognizes a few exceptions, some of which are identified below:
a) Beneficiary to a trust: A beneficiary can file a suit to enforce his benefits even though he is not a party to the contract. This is because the contract was for his benefit.
b) Estoppel and acknowledgement: When a party by his consent admits or acknowledges liability, that party is deemed to be an agent of the third party and shall be stopped from denying his liability to be incurred by the third party. He can therefore enforce the contract.
c) Assignment of a contract: Where the contract is assigned, the assignee can enforce the contract e.g. a wife can enforce recovery of an insurance policy assigned by her husband.
d) A holder in due course of a bill of exchange can sue prior parties thereto although there is no privity of contract between him and them. This is a statutory exception under Bill of Exchange Act.
e) Promise made for voluntary service: Though the service was not prompted by any formal agreement to consideration, law would in certain cases impute quasi contract and thus enabling the volunteer to claim reasonable payment.
f) Gift: Gifts communicated to the beneficiary are recognized benefits and the law would enforce transfer of these gifts and presents.
g) Agency: Consideration made so as to create agency relations is also enforceable.
Difference between stranger to consideration and stranger to contract.From the foregoing, it will be observed that a third party on behalf of the promisee may perform consideration. This third party (a stranger) is allowed at law to call for enforcement of the promise to such a contract. This is contrary to the general rule of privity of contract meaning; a contract can only be enforced by the parties directly related by the contract i.e. promissor and acceptor. Every other person lacks the regal relationship (locus standi) to the contract.
INTENTION TO CREATE LEGAL RELATIONSHIP.For an agreement to constitute a contract, the parties thereto must have intended it to have legal consequences. Even though the agreement may have all other agreements of valid contract it would not be a contract until the intention to create a legal relationship is established.In practice, however, parties to a contract do not direct their attention to this point when negotiating with each other, with the consequence that the courts have as it were, been called upon to ‘fill the gaps’.This, the court have proceeded to do by formulating certain principles or presumptions that will apply in absence of an express declaration to the contrary. These presumptions are as follows:
a. Business agreements.Unless specifically stated or implied otherwise, all business agreements are made with intention to crate legal relationship.
b. Domestic or family agreements-These include:i. Agreements between husband and wife;
1. Where a husband and wife are living together amicably, there is a legal presumption that any agreement they enter into is not legally binding – (Balfour Vs. Balfour) This is founded on the necessary caution to prevent ill advised litigation from destroying love and affection between couples.
2. Where the husband and wife have separated or are about to separate so that the marriage is practically over any agreement entered into by the spouses is presumed to have been intended to be legally binding- Meritt vs. Meritt.
ii. Agreement between parent and child: These are made on goodwill of the parties and are not legally binding.iii. Agreements between close relatives based on love and affection in their said relationship are also non enforceable.
c. Social agreements.These would not be enforceable unless it is agreement under seal.
CAPACITY.The general rule is that any person may enter into any kind of contract.However, there are certain classes of persons to whom specific rules applies, with regard to their capacity to contract.These are as follows:
- A minor or an infant.- A person of unsound mind.- Married women.- Alien or non-citizens.- Corporations.- Trade unions.- Foreign sovereign.- An insolvent or bankrupt.
A MINORThe capacity of parties emphasizes that parties entering the contract must be capable of understanding it and forming a rational judgment as to its effect upon their interests. For this purpose, the law stresses that the person has to be a major, thus assuming that he is mature. Age of Majority Act (Laws of Kenya Cap. 33), in the 5 th Amendment in 1974 made the age of majority to be 18 years – Section 2.
Every person therefore is competent to contract who is sound mind and has attained the age of majority according to the law to which he is subject and is not disqualified from contacting by any law to which he is subject. A contract with a minor is binding, voidable, or void depending on their nature or type.
Binding Contracts: An infant may only be bound by agreement the object of which is to enable him obtain necessities. They can sue and be sued on them.
Necessities: The Sale of Goods Act, Sec. 4(2) defines necessities as ‘goods suitable to the condition in life of such infant or minor… and to his actual requirements at the time of sale or delivery’
Thus the statutory requirements of necessaries for a minor are:1. That the goods were suitable to the condition in life and;2. That they were suitable to the infant’s actual requirements at the time of sale or delivery in the sense that he had not at the time, an adequate supply from other services.
In the case of Nash Vs. Inman, the defendant was an infant college student. Before proceeding to college, his father bought him the necessary clothing material he required. However, while in college, he contracted and was supplied with additional clothing material by the plaintiff but did not pay and was sued. His father gave evidence to the effect that he had purchased for him all the clothing material he required. It was held that the contract was unenforceable, as the plaintiff had failed to prove that the goods were necessaries.Other necessaries: The definition above limits necessaries to goods as defined in Sale of Goods Act. However, infants/minors may of necessity need legal advice, lodging facilities, provision of transport and even education by formal or informal instruction.Contracts for Beneficial Services: Case law demonstrates that a contract whose object is to benefit an infant is enforceable by or against him. In the case of Doyle Vs. White City Stadium, the plaintiff was an infant but qualified city boxer. He applied to join the British boxing board and was given a license thereby becoming a member.
One of the rules of the association was that the board was empowered to withhold payment of any price money won if a boxer was disqualified in a competition. Doyle was disqualified in a completion and the board withheld payment. He sued to enforce the agreement. It was held that much as he was a minor, the contract was for his beneficial service and so enforceable.In all these cases of necessaries to a minor, the court will recognize a reasonable price and not always the agreed price – Section 4(2).Voidable contracts:Infants cannot be held liable against these contracts. Further more, the infant is entitled to avoid such contracts or repudiate such contracts during infancy or within a reasonable time after attaining the age of majority. Such contracts includes:
- Lease agreements.- Purchase of company shares.- Partnership agreements.
Under Section 12 of the Partnership Act, an infant partner is entitled to avoid the partnership agreement during infancy or within a reasonable time after attaining the age of majority. Under Section 13, if he does not avoid the contract after attaining the age of majority, he becomes liable for debts and other liabilities of the partnership from the date he becomes a major.
Void Contracts:Under the Infants Relief Act 1874, which is a Statute of General Application in Kenya, certain contracts entered into by infant are deemed void.Position of a Minor at Law.
- Agreement with a minor, subject to certain exceptions is absolutely inoperative and void.- A minor can be a promisee or beneficiary. This is intended to protect the interests of a
minor.- An agreement with a minor being void cannot therefore be ratified by him on his
attaining majority otherwise it will also be held liable for services rendered at his request during his minority.
- Since the amount borrowed by an infant is irrecoverable by reason of the contract being void, any security given by the infant or any other person to secure the amount is also unenforceable. It was so held in Valentine vs. Canaille.
- A minor can always plead infancy. However, the court can direct him on equitable grounds to restore the property to the aggrieved party.
- A minor can be agents thus connect the first to the third party without being liable for any consequential liability.
- A minor’s estate is liable for necessaries supplied to him or to any person whom the minor is bound to support. This is to ensure that he makes due payment in respect of service rendered to him at his demand.
- A minor cannot be declared insolvent since he is incapable of binding himself and to contract debts.
- A minor cannot become a partner but may be admitted for business benefits if partners so desires. This is because partnerships are contractual relationships and likewise to a company.
- No liability of guardian for a minors act. However, where the minor is acting as an agent of a guardian major, the guardian would be held responsible.
- A minor may be bound by an agreement entered by guardian for his benefits.- Specific performance would be granted against a minor. This is as per the order of the
court since contracts with a minor is void.
Considering at length the legal position of a minor, Jurisprudence philosopher Salmond said “The law protects their persons (minors), preserves their rights and estates, executes their larches and assist them in their pleadings. The judges are their counsels, the juries are their servants and the law is their guardian”.
PERSONS OF UNSOUND MINDA person is said to be of sound mind for the purpose of contract if at the time when he makes it, he is capable of understanding it and of forming a rational judgment as to its effect upon his interests.Two things are therefore necessary:
1. Capacity to understand the contract.2. Ability to make rational judgments as to its effect upon his personal interests.
Contracts entered into by such persons of unsound mind are voidable at his option if it is proved that:
- He was too insane to understand what he was doing.
- The other party was aware of his mental condition. In Imperial Loan Co. Ltd. vs. Stone, the defendant had signed a promissory note and when sued on it, he pleaded that he was at the time, of unsound mind and that the other party was aware of his mental condition. It was held that he was not liable by reason of insanity. In the words of Lopes L. J “In order to avoid a fair contract on the ground of insanity, the mental incapacity of the one must be known to the other contracting party.
The defendant must plead and prove not merely his insanity but the plaintiff’s knowledge of that fact and unless he proves these two things he cannot succeed”Being voidable contacts, they may be ratified by him (person of unsound mind) when he becomes of sound mind.Such persons of unsound mind are also held liable for all necessaries supplied to them at their point of need. However they are only liable to pay reasonable prices for the necessaries under Section 4 of Sale of Good Act and not necessarily the contract price.
OTHER PERSONS DISQUALIFIED BY LAW FROM CONTRACTING.An alien enemy: This is a person whose sovereign state is at war with Kenya. He is barred form contacting to the interest of the country. He cannot either file a suit against a native without prior permission of the government.
Foreign sovereign: These are representatives of foreign states. They cannot be sued unless they voluntarily submit to the jurisdiction of the local courts. They can else enter into a contract through agents. To file a suit against such sovereign is only with the permission of the government.
An insolvent: These persons’ properties vest with an appointee of the court of law, who takes the responsibility of discharging the liabilities over the estates of the insolvent. The contractual capacity of such persons is restricted by the provisions of the Bankruptcy Acts.
Corporations: These can only contract when authorized by statute by which it was created or by the memorandum of association respectively. All such contracts not within the objects and those that are reasonably incidental thereto are ultra vires and therefore null and void. The ultra vires acts cannot be ratified even be majority of the members at the annual general meeting – Asbury Railway Carriage & Iron Co. Vs Riche 1875.
Married women: At common law, a married woman and her husband were taken to be one, that one being the husband. Thus it’s the husband who was to be responsible for her liabilities. However, this concept has since been revised by the Law Reforms Act of Married Women and Tort Feasors Act of England (1882) that is a statute of General Application in Kenya.
LEGALITY OF CONSENTIf contract is not entered into by free will, the contract becomes vioidable at the option of the person whose consent was not free. Two or more people are said to consent when they agree on same thing in the same sense. Consent is not free when it is created by:
- Coercion,- Undue influence.- Misrepresentation.- Fraud.- Mistake etc.
A contract made due any of the elements listed above avoidable at the option of the party whose consent was not free.
COERCION.Coercion is committing or threatening to commit any act forbidden by the penal code, detaining or threatening to detain any property to the prejudice of any person whether directly or by using another person so that the contract may be made.Elements of coercion may be identified as below:
- Committing or threatening to commit any act forbidden by the penal code.- Unlawful detaining or threatening to detain any property.- Done with the object of inducing or compelling any person into agreement.
The act of coercion must be directed to any person not necessarily the other party to the agreement. A threat to enforce ones legal rights does not amount to coercion.Whatever threat to commit suicide amounts to coercion. A similar term Duress is used under English law.
UNDUE INFLUENCE.A contract is said to be induced by undue influence where the relations subsisting between the two parties is such that one of them is in a position to determine the will of the other party and uses the position to obtain an unfair advantage over the other.It implies unfair and improper conduct or pressure on the mind of the other person as against physical fear created by coercion. Consequently the person whom undue influence is exercised is indirectly compelled to enter into the transaction.
Elements of undue influence:- One person is in a position to dominate the will of the other.- The party domination the will uses the position to dominate the will of the other.One is deemed to be in a position to dominate the will of another in the following circumstances:
- He holds a real or apparent authority over the other.- He stands in a fiduciary relation to the other e.g. a doctor and a patient.- The contract is made with a person whose mental capacity (temporary or permanent) is
affected by reason of age, illness, alcohol etc.When person who is in a position to dominate the will of the other entering into an unconscionable bargain with the other, the burden of proof that this was not the intention shall be upon him, incase of evidence to the effect that the contract was unconscionable. Unconscionable bargains are unfair bargains and equity deems them voidable at the option of the innocent party.
Presumption of undue influence:In the following relations, contracts undue influence is presumed:
- A parent and a child.
- A doctor and a patient.- Religious guru and a faithful.- Trustee and a beneficiary.- A guardian and a ward.- A lawyer and his client.
In the case of Allcard Vs. Skinner (1887) Miss Allcard took vow of Chastity, Poverty and Obedience so as to become a nun. She accordingly had to gift away all her bounties. She was not allowed to seek any external advice. As a result, she gifted all the properties to the Mother Superior. After several years, she sought for legal advice. However, some more years passed before she brought legal action to recover her properties. Court held that the transfer of her properties was voidable since it was under undue influence. However, she had taken too long to come to court and as a mater of legal principle, delay defeats equity. The court could therefore not order return of her properties.
Distinguish between coercion and undue influence.a. Coercion is a physical threat to a person or property while undue influence is mental or
moral threat.b. Coercion involves doing or threatening to do an illegal act while in undue influence the
act may not be illegal but be unfair or unconscionable.c. Coercion will imply penal action besides the agreement being void while undue influence
only makes the agreement voidable.d. For coercion no specific relations between the parties is necessary while specific relations
e.g. between a doctor and patient is necessary in undue influence.e. Coercion is against an illegal act while undue influence maybe against a legal act.
MISREPRESENTATION.A representation is not a term, but a statement of fact made by one party to the other during their preliminary negotiations, which was intended to induce the other party to enter into that contract. It must be a statement of fact and not an opinion. Misrepresentation is therefore an incorrect statement made innocently.This can be through the two following ways:
- By positive statement: This involves making a positive representation stipulation without any reasonable base or ground, honestly believing it to be true though it is not true.
- Breach of duty: This is when a person commits a breach of duty to disclose information, which gives him an advantage by misleading the other to his advantage.
When a person induces another person even innocently to make a mistake regarding a subject matter of the agreement. He is making a misrepresentation.
Essentials of misrepresentation:1. Representation or omission of a material fact.2. The representation is of a fact not an opinion.3. The representation must have been made during negotiation.4. That the statement was not a mere puff or sales talk.5. The statement must have been intended to be relied upon by the representee.
6. The misrepresentation is wrongful information but the party making it does not know that to be wrong.
Silence or non-disclosure does not as a general rule amount to misrepresentation. However omission or non-disclosure may amount to misrepresentation in certain circumstances as bellow:
- Where the information made is half truth.- Where the contract is on confidential relationship.- Where the contract is one of the utmost good faith.- Where disclosure is a statutory requirement e.g. contents of a company’s’ prospectus.- Where a statement is true when made but turns false due too changes in circumstances
before the contact is concluded and the maker does not disclose its falsity.FRAUD.This is misrepresentation made with an intention to deceive or cheat.Fraud means and includes any of the following acts committed by the party to contract (or his connivance or by his agent) with an intention to deceive another party thereto, (or his agent) inducing him to enter into the contract:
1. The suggestion that a material fact is true when it is not, by a person who does not believe it to be true.
2. Active concealment of a material fact by a person having knowledge of it.3. A promise made without any intention to perform it.4. And any other act fitted to deceive.5. Any such acts or omission as the law specifically declares to be fraudulent.
Elements of fraud are as follows:1. False representation of a fact and not an opinion.2. The representation must have been made by the party himself or on his knowledge.3. The representation must have been made knowingly or carelessly without ascertaining its
truth.4. The intention of misrepresentation must have been to deceive.5. The party filling a suit must have suffered harm, loss or damage due to the
misrepresentation. Thus, no damage, no fraud.Silence is fraud if there is a duty to speak i.e. when silence is equivalent to speech. This duty to speak is necessary when the material fact to be disclosed may affect the willingness of the other party to enter into the transaction. Such fact is called a material fact.Disclosure of every material fact is particularly required in the following circumstances:
- Contract of insurance.- Contract of immovable property. - Contract of suretyship. - Allotment of shares in companies. - Contract of marriage.- Contract of family settlement.
Distinction between fraud and misrepresentation:Whereas fraud is made intentionally, misrepresentation is made innocently.Misrepresentation makes a contract voidable with right to claim damages, while fraud attracts rescission of the contract without damages.
LEGALITY OF OBJECTA contract must be entered for lawful consideration and lawful object. Lawful object is with regard to the purpose or design i.e. the object for entering in to the contract must be legal.If the plaintiff gives evidence that manifests any form of illegality in the nature of the contract he wishes to enforce, his action will fail. This explains the maxim- Ex turpi causa non-oritur action i.e. There can be no action upon a wrongful ground. In same cases, object and consideration may be the same.
State and explain when consideration and object are unlawful- If it is forbidden by law: An object is said to be forbidden if it is punishable by any law or
order made in exercise of power or authority conferred by legislation.- If it is of a nature that if permitted would defeat the provisions of any law in place.- If it implies or involves injury to a person or property of another person. It is the object of
the law to protect its persons and their properties.- If it is fraudulent i.e. it aims at cheating other people.- If the court regards it to be immoral or opposed to public policy.
Agreements opposed to public policyPublic policy means the endeavors of the law or government for public good, welfare or interest. Act asserting the contrary to public policy is void. The term public policy is so widely interpreted that is seen as an unruly horse. It is vague and often misused. For this reason the court had to clarify the meaning of public policy and categorize kinds of contracts opposed to public policy. The following agreements have been identified to be opposed to public policy:
- Agreement for trading with an enemy of the state: This is because it may give unforeseen strategic advantage to the enemy state.
- Agreement interfering with administration of justice: These can take any of the following forms:
a. Agreements stifling prosecution: These are agreements, which encourages making money through crimes and in abuse of law.
b. Maintenance and Champerty: Maintenance means financing a suit by a third party who has no legal interest or locus standi. Champerty implies a bargain by which one party is to assist the other party to recover property and is to share the proceeds of the action
c. An agreement which interferes with direct administration of justice e.g. bribery.- Agreement to vary period or limitation: It is unlawful to agree to defeat the object of
any law.- Agreement creating interest opposed to duty: Duty must be done any agreement to
abscond duty promotes inefficiency and corrupts, hence deemed void.- Agreement restraining personal freedom: Personal freedom is a constitutional right
and fundamental right of natural justice.- Agreement to interfere with personal right and duties: For instance, guardianship
right cannot be infringed or transferred merely for public interest.- Agreement in restraining marriage: This is void if the restraint is of a major's
marriage. - Agreement interfering with marital status: This becomes immoral and duty avoiding
and so void.
- Agreement of marriage breakage or brokerage: Everyone has a liberty to marry according to his free choice. This should not be disturbed by monetary considerations or engaging paid broker to procure matters.
- Agreement of trafficking in public offices and titles: e.g. Sale or transfer of public offices and titles.
- Agreement to defeat creditors or revenue authorities: This is an agreement to dishonor legal responsibility.
- Agreement in restraint of trade: Every agreement by which anyone is restrained from performing lawful profession or trade or business of any kind is to that extent void.
An agreement in restraint of trade is void' Explain this statement giving exceptions to this rule.Public policy provides liberty to legal trade, vocation, profession or business of any kind. Following exceptions however are generally recognized.1. Sale of goodwill:One who sells the goodwill of a business may agree with the buyer to refrain from carrying out a similar business within specific geographical limits, so long as the buyer or any other person deriving benefits from the title carries on a like business therein.
2. Agreement under the Partnership Act:- A person would not be allowed to carry out any business other than that of the firm while
he is partner.- Any person before ceasing to be a partner i.e. an outgoing partner may agree with his
partners not to carryon a similar business to that of the firm within a specified period of time or specified locality.
- Partners upon or in anticipation or dissolution of the firm may make an agreement that some or all or them will not carry on business similar to that of the firm from a specified time or specified local limits.
- Sale of goodwill within partnership firm: Where after dissolution or firm, goodwill is sold, a partner may carry on a business competing with that of the buyer and may advertise such business, but not using the firm’s name.
3. Trade combinations: Created with the object to provide standardized goods to eliminate cut-throat competition to regulate opening and closing of shops though in a way trade limitation, it is not void as it is for the good and warfare of the public. 4. Service contracts: It is valid to an employer to prevent their employee in engaging themselves in similar transactions during the course of their engagement.5. Control of distribution: A manufacturing industry is at liberty to sell a product to a particular seller or distributor.
QUASI CONTRACTS.These are contracts that are presumed to exist in law, without any formal agreement between the parties. They are based on the principle of justice and fairness that a person must not obtain unfair advantage over another person due to lack of contract.Examples or quasi contracts are found in the following cases:
- Supply of necessaries: If a person without capacity to contract is supplied with
necessary goods and services that are suitable to his status in life, quasi contract comes into existence and constructively creates a contract between the parties. This is the case with minors and infants who are disqualified from entering into oral or written contracts.
- Responsibility of finder or goods: A person who finds goods belonging to another person is under no obligation to take them into his custody. However if he takes them into his custody, he is under a duty placed by law (quasi contract) to look for the true owner and take proper care of the goods.
- Payment made by mistake: A person to whom money has been paid by mistake or anything delivered by mistake must repay or return it to the person who paid it by mistake e.g. A pays money to B by mistake, the money is actually due to C. In this case B must refund the money to A.
- However, C can't recover the money from B because he is a stranger to contract. Even if there was no valid contract between parties above, their relations are created by quasi contract.
DISCHARGE OF CONTRACTDischarge of contract means termination of rights and obligations arising out of contacts. This may be by two ways:
- Act of the parties. This is also called breach of contract.- By operation of law.
Discharge by breach:Breach means failure/ refusal for performance by one party.This discharges the contract unless the aggrieved party waves his right by words or conduct. Breach of contract may be actual or anticipatory.Actual breach is when one party fails to perform the contract on the appointed date.
Anticipatory breach takes place before the actual date of contract performance.This may be express or implied. Express when the promissor informs the promisee of his inability or intention not to perform the contract, or Implied when the promissor does an act, which renders the performance impossible.
Discharge by operation of Law:- By performance.- By impossibility.- By death.- By insolvency.- By agreement or consent or waiver.- By merger.- By lapse of time.- By frustration.
FRUSTRATION- A contract is said to be frustrated when performance of the obligations is rendered
impossible, illegal or commercially useless, by unforeseen or extraneous circumstances for which neither party is to blame.
- It is important in frustration that neither of the parties is to blame and the frustrating event must be external to the contract. The doctrine of frustration as a method of discharging a contract is an exception to the common law doctrine of absolute contractual obligations, under which parties must perform their obligations failing which they are liable in damages.
- Additional expenses do not as a general rule frustrates a contact unless it becomes commercially useless to perform. A contract is not frustrated if:
- The event in questing is provided for by the contract. - One of the parties is to blame.A contract may be frustrated in the following circumstances:
1. Destruction of subject matter – If the subject matter, the basis of the contract is destroyed, the contract is frustrated and the parties discharged. The destruction need not be total but must change the commercial characteristics of the contract. It must be evident that the subject matter was the sole foundation of the contract.
2. Non-occurrence of events or state of affaires – If a contract is based on a particular event of state of affairs existing at a particular time, its non- occurrence may frustrate the contact, however for the contract to be frustrated, it must be proved that the event or state of affairs was the sole foundation of the contract.
3. Government intervention or interference – If Governmental Acts or policies render performance of a contract impossible, the same is frustrated and the parties discharged e.g. refusal to grant a license.
4. Illegality – If performance of the contract becomes illegal due to change of law or otherwise, it is frustrated and the parties discharged.
5. Death or permanent incapacitation – In contracts of personal service or performance e.g. employment, the death or permanent incapacitation of the person frustrates the contract there by discharging the parties.
6. Supervening events – These are circumstances which intervene and thereby render performance of a contract impossible, or delay the same thereby changing the commercial characteristic of the contract. e.g. the outbreak of a war after a contract has been concluded before performance may render it impossible to perform and thereby frustrate it
Effects or consequences of frustration Frustrated contracts in Kenya are governed by the law reform (Frustrated Contract) Act 1943. It applies in Kenya as a statute of general application by virtue of the schedule to the law of contract Acts. Under this Act, when a contract is frustrated or becomes impossible to perform, the rights of the parties are adjusted as follows:
1. The contract is terminated.2. Money paid is recoverable.3. Money payable ceases to be payable4. If a party suffers loss, the court may order the other party to pay to such party a sum of
money.5. If at party derives a benefit other than financial, the court may order such party to pay to
the other a sum of money which must be less than the benefit the party has so derived.
REMEDIES / CONSEQUENCE FOR BREACH OF CONTRACT.1. Right to claim compensation and damages:
When a contract is broken, the party that suffers breach is entitled to receive from the other party who has broken the contract compensation for any loss or damages.
These may be of two categories below:- Damages which naturally arise in usual cause of things from such breach.- Damages anticipated for the breach of contract.
.Damages are classified as follows:
- Ordinary or General Damages: These are damages arising directly and naturally from breach. Measure or damages in case of beach of contract for sale of goods is the difference between the price during contracting and during the breach day. Measure of damages where same types of goods are not available being out of difficulties to obtain them; the best substitute available may be taken into account. No compensation for remote or indirect loss.
- Special or particular damages: These are contemplated or expected remote damage arising from the breach or contract.
It can be recovered only if it was a provision or subject at contracting.- Vindictive or Exemplary damages: This is compensation specially laid to punish the breach
of contract so as to set an example before others so that they would not commit similar breach in future.
Vindictive damages are often considered in the following cases:a. In case of breach of promise to marry.b. In case of wrongful dishonor of a Cheque by a bank, with respect to liability arising out
of the customers trade or business.- Nominal damages: This is when the party does not suffer any loss due to breach or
contract. However, he is entitled to a little sum e.g. Kshs. 200/= in recognition of his contractual right.
Damages for breach of warranty: In case of breach of warranty, the buyer is entitled to claim all damages directly caused by such breach. .
It must be bone in mind that the aggrieved party is under duty to mitigate loss or damage arising out of breach. However, difficulty in ascertaining or assessing the value of damage cannot prevent the aggrieved party from claiming compensation.Sometimes, to avoid difficulty in assessing and ascertaining damages arising from breach, parties fix in advance the amount that would be paid in the event of breach. This may either be in penalty or liquidated damages.Liquidated damages are the fair and reasonable estimate charge for the loss while penalty is an excess compensation fixed for the purpose of compelling or coercing performance. It is a terrorem charge implanted into promisor's mind so as not to breach.
2. Right of rescission:This is the yielding or giving of any secret profit or benefit enjoyed by a person in breach of his duty of trust e.g. Agents, Directors, and Trustees etc. Any benefit accruing to such persons by virtue of their positions in equity belongs to the other party and must be given up.3. Quantum Merut: This is when one party performed his work as per the contract and then the contract repudiates e.g. by impossibility or illegality. He thereby becomes entitled to
remuneration portion or work he has performed.4. Specific performance: Usually damages are granted by way or monetary compensation. When this, however, is not possible, the court may compel the actual performance. Since this is as per discretion of the court, it has gone ahead to lay down cases where Specific or special performance shall not be granted as follows:
i. Where monetary compensation is adequate remedy.ii. Where contract is of personal nature.iii. Where the court cannot effectively supervise the execution of the
contract e.g. building contract.iv. Where it will be inequitable e.g. against a minor.v. Where the contract made be the company is ultra-vies the
company.vi. Where the contract is revocable.vii. Made by trustee in breach or trusteeship.
5. Injunction order: Since contract of personal nature cannot be enforced by special performance due to impossibility of effective supervision by the court, injunctive orders are therefore made where breach is strictly forbidden. The promisee is by this order, compelled and has no alternative but to abide by the contractual obligations.6. Restitution: This literally means restoration. When a contract becomes void, the party who received benefits at the expense of the other ought to restore them.7. Cancellation or rectification: When through fraud or mutual mistake of parties, title to property has passed registration records may be revisited at the order of a court of law for the purposes of reversing, correcting, rectifying or canceling such records in the register of titles. Either party may also apply for such rectification of the register.
REVISION QUESTIONS
QUESTION ONE
(a) Explain the rule governing acceptance of an offer by post.
(b) In relation to the law of contract, explain the legal principles applicable in the following
situations stating whether a contract exists or not.
1. Mjomba sees a suitcase in a shop window with a price label of Sh.5,000. he goes into the
shop to buy the suitcase. He gives Sh.5,000 to the cashier but he is told that the wrong
price tag had been attached and that the correct price is Sh.6,000. Mjomba insists that he
bought the suitcase for Sh.5,000. Advise Mjomba.
2. Kibwana offers to sell his bicycle to Kariuki for Sh.3,000. Kariuki says he can only
afford to pay Sh.2,500. Kibwana says it is not enough. Later in the evening, Kariuki
goes to Kibwana’s house to say he has accepted Kibwana’s offer but Kibwana says that
he has changed his mind and does not want to sell the bicycle. Kariuki insists that he has
bought the bicycle. Advise Kariuki.
CHAPTER SEVEN
THE LAW OF TORTS
After studying this chapter, you should be able to:
• Define Tort and explain the constituents of tort
• Explain the general defenses under tort
• Distinguished the tort from crime and contract
• Understand Trespass and its general defenses
• Explain the Vicarious liability and the remedies of the tort
INTRODUCTION
The word tort is of French origin and is equivalent of the English word wrong, and the Roman law term delict. It is derived from the Latin word tortum, which means twisted or crooked. It implies conduct that is twisted or crooked. It is commonly used to mean a breach of duty amounting to a civil wrong.
Of the various attempts to define tort, Salmond's definition is rather popular. Salmond defines tort as a civil wrong for which the remedy is a common law action for unliquidated damages and which is not exclusively the breach of a contract or the breach of a trust or other merely equitable obligation.
A person who commits a tort is known as a tortfeaser, or a wrongdoer. Where they are more than one, they are called joint tortfeaser. Their wrongdoing is called tortuous act and they are liable to be sued jointly and severally.
The principle aim of the Law of tort is compensation of victims or their dependants. Grants of exemplary damages in certain cases will show that deterrence of wrong doers is also another aim of the law of tort.
OBJECTIVES OF LAW OF TORTS
i. To determine rights between parties to a dispute.
ii. To prevent the continuation or repetition of harm e.g. by giving orders of injunction.
iii. To protect certain rights recognized by law e.g. a person's reputation or good name.
iv. To restore property to its rightful owner e.g. where property is wrongfully taken away from its rightful owner.
CONSTITUENTS OF TORT
1. There must be a wrongful act or omission.
2. The wrongful act or omission must give rise to legal damage or actual damage and;
3. The wrongful act must be of such a nature as to give rise to a legal remedy in the form of an action for damages.
1. Wrongful act.
The act complained of should, under the circumstances be legally wrongful as regards the party complaining, i.e. it must prejudicially affect him in some legal right.
Merely that it will, however directly, do him harm in his interest is not enough. The act being wrongful in law is called actus reus.
An act which prima facie appears to be innocent may become tortuous if it invades the legal right of another person e.g. the erection in ones' own land, of anything, which obstructs light to a neighbors' house.
Liability for a tort arises therefore when the wrongful act complained of amounts either to an infringement of a legal private right or a breach or violation of a legal duty.
2. Damage.
The sum of money awarded by court to compensate damage is called damages. Damage means the loss or harm caused or presumed to be suffered by a person as a result of some wrongful act of another. Legal damage is not the same as actual damage. Every infringement of the plaintiff’s private right or unauthorized interference with his property gives rise to legal damage.. There must be violation of a legal right in cases of tort.
Every absolute right, injury or wrong i.e. tortuous act is complete the moment the right is violated irrespective of whether it is accompanied by and actual damage. In case of qualified right, the injury or wrong is not complete unless the violation of the right results in actual or special damage. Every injury, thus imports damage, though may not have cost the victim a penny, but simply by hindering the right, as an action for a slanderous word, though a man does not lose a penny by speaking them yet he shall have an action. Likewise a man shall have an action against him who rides over his ground, though it does him no damage, for it is an invasion
of his property and the other trespasser has no right to come there.
The real significance of legal damage is illustrated by two maxims namely: Injuria sine damno and Damnum sine injuria. Damnum is meant damage in the substantial sense of money, loss of comfort, service, health or the like. By injuria is meant a tortuous act.
Injuria sine damno.
This is the infringement of and absolute private right without any actual loss or damage. The phrase simply means Injury without damage. The person whose right is infringed has a cause of action e.g. right to property and liberty are actionable per-se i.e. without proof of actual damage.
Example: Refusal to register a voter was held as and injury per-se even when the favorite candidate won the election - Ashby Vs. White (1703). This rule is based on the old maxim of law ‘Ubi jus ibi remedium’ which means that where there is a right, there is a remedy.
Damnum sine injuria
This is the occasioning of actual and substantial loss without infringement of any right. The phrase simply means Damage without injury. No action lies. Mere loss of money or moneys' worthy does not constitute a tort.
There are many acts, which though harmful are not wrongful, and give no right of action. Thus Damnum may be absque injuria i.e. damage without injury.
Example: In the case of Mayor & Bradford Corporation Vs. Pickles (1895), Pickles was annoyed by the refusal of Bradford Corporation to purchase his land for their water undertaking.
Out of spite, he sank a shaft on his land, which had the effect of discoloring and diminishing the water of the Corporation, which percolated through his land.
The House of Lords held that the action of Pickles was lawful and no matter how ill his motive might be he had a right to act on his land in any manner that so pleases him.
In the case of Mogul Steamship Co. Vs. Me-Gregory (1892). Certain ship owners combined together. In order to drive a ship-owner out of trade by offering cheap freight charges to customers who would deal with them.
The plaintiff who was driven out of business sued the ship-owner, for loss caused to him by their act. The court held that a trader who is ruined by legitimate competition of his rivals could not get damages in tort.
3. Remedy.
The essential remedy for a tort is action for damages, but there are other remedies also e.g. injunction, specific performance, restitution etc.
Further, damages claimable in tort action are unliquidated damages. The law of tort is said to be a founded of the maxim- Ubi jus ibi remedium i.e. there is no wrong without a remedy.
Other elements of tort
1. Act or omission: In order to constitute a tort, there must be a wrongful act. ‘Act’ in this case constitutes both positive and negative acts, i.e. acts and omissions. Acts which make one liable do not include natural acts like lightning which are beyond human control. They are also different from mere thoughts and intentions which are in themselves harmless and difficult to prove.
2. Voluntary and involuntary acts: acts and omissions may be voluntary or involuntary. An involuntary act does not give rise to liability in tort.
3. Mental elements: Plaintiff must show some fault on the part of the defendant. Fault here means failure to live up to some ideal standard of conduct set by law. To determine fault, the following must be proved:
a) Malice: In the popular sense, malice means ill-will or spite. In Law, it means i) intentional doing of a wrongful act and, ii) improper motive. Thus a wrongful act done out of malice is an act done wrongfully and without reasonable and probable cause, dictated by anger or vindictive malice.
b) Intention: i.e. where a person does a wrongful act knowing the possible consequences likely to arise, he is said to have intended that act, and is therefore at fault.
c) Recklessness: i.e. where a person does an act without caring what its consequences might be, he is at fault.
d) Negligence: i.e. where the circumstances are such that a person ought to have foreseen consequences of his act and avoided it altogether, he would be at fault if he bothers not.
e) Motive: Motive is the ulterior objective or purpose of doing an act and differs from intention. Intention relates to the immediate objective of an act while motive relates to the ulterior objective. Motive also refers to some personal benefit or satisfaction which the actor desires whereas intention need not be so related to the actor. An act which does no amount to legal injury cannot be actionable because it is done with a bad motive it is the act, not the motive for the act that must be regarded. If the act apart from motive gives rise merely to damage without legal injury, the motive, however reprehensible it may be, will not supply that element. The exceptional cases where motive is relevant as an ingredient are torts of malicious prosecution, malicious abuse of process and malicious falsehood.
4. Malfeasance, misfeasance and non-feasance: ‘Malfeasance’ refers to the commission of a wrongful act which is actionable per-se and do not require proof of intention or motive. ‘Misfeasance’ is applicable to improper performance of some lawful act, for example, where there is negligence. ’Non-feasance’ refers to the omission to perform some act where there is an obligation to perform it. Non-feasance of a gratuitous undertaking does not impose liability, but misfeasance does.
MOTIVE AND MALICE.
Motive means the reason behind the act of the defendant. When motive is colored with ill will, it becomes malice. Malice means desire or ill will to cause damage to someone.
As a general rule motive is irrelevant in determining liability in tort. A good or bad intention is not a defense in tort.
Case: Bradford Corporation V s. Pickles (1895): The general irrelevance of motive and malice is clearly analyzed in this case. Pickles was annoyed by the refusal of Bradford Corporation (plaintiff) to purchase his land for their water project. Out of Malice he sank a shaft in his land, which had the effect of discoloring and diminishing the water of the corporation, which percolated through his land. The corporation applied for an injunction to restrain Pickles from collecting the underground water.
The court held that an injunction could not be granted as Pickles had a right to drain from his land underground water not running in a defined channel. Therefore, the fact that Pickles was malicious in his conduct is immaterial.
Distinctions between Contract and Tort1. In a contract the parties fix the duties themselves whereas in tort, the law fixes the duties.
2. A contract stipulates that only the parties to the contract can sue and be sued on it (privity of contract) while in tort, privity is not needed in order to sue or be sued.
3. In the case of contract, the duty is owed to a definite person(s) while in tort, the duty is owed to the community at large i.e. duty in- rem.
4. In contract damages may be in the form of liquidated or unliquidated damages whereas in tort, damages are always unliquidated.
Distinctions between Tort and Crime
1. In tort, the action is brought in the court by the injured party to obtain compensation whereas in crime, proceedings are conducted by the state.
2. In tort, the wrongdoer has to compensate the injured party while in crime; he is punished by
the state in the interest of society.
3. A tort is an infringement of the civil rights belonging to individuals while a crime is a breach of public rights and duties, which affect the whole community.
GENERAL DEFENSES IN TORT
1. Volenti Non fit Injuria
The general rule is that a person cannot complain for harm done to him if he consented to run the risk of it. For example a boxer, foot baler, cricketer, etc cannot seek remedy where they are injured while in the game to which they consented to be involved. Where a defendant pleads this defense, he is in effect saying that the plaintiff consented to the act, which he is now complaining of. It must be proved that the plaintiff was aware of the nature and extent of the risk involved.
Case: Khimji Vs Tanga Mombasa Transport Co. Ltd (1962), The plaintiffs were the personal representatives of a deceased who met his death while traveling as a passenger in the defendant's bus. The bus reached a place where road was flooded and it was risky to cross. The driver was reluctant to continue the journey but some of the passengers, including the deceased, insisted that the journey should be continued. The driver eventually yielded and continued with some of the passengers, including the deceased. The bus got drowned together with all the passengers aboard.
The deceased's dead body was found the following day. It was held that the plaintiff's action against the defendants could not be maintained because the deceased knew the risk involved and assumed it voluntarily and so the defense of Volenti non fit injuria rightly applied.
It should be borne in mind however that this maxim does not apply to the tort of negligence so as to preclude from remedy a person who has recklessly and negligently breached duty of care. Therefore negligence of a driver or that of a surgeon doctor would not ordinarily be excused merely on the maxim of Volenti non fit injuria. Further it does not apply to rescue cases.
It is said that although no one owes duty to anyone else to preserve his own safety, yet if by his awn carelessness a man puts himself into a position of peril of a kind that invites rescue, he would in law be liable for any injury caused to someone he ought to have foreseen would attempt to come to his aid.
There are however some limitations to the application of the maxim of volenti non fit injuria:-
First, no unlawful act can be legalized by consent, leave or license.
Secondly, the maxim has no validity against an action based on breach of statutory duty.
Thirdly, the maxim does not apply in cases where the plaintiff has, under an exigency caused by the defendant’s wrongful misconduct, consciously and deliberately faced a risk, even of death to rescue another from imminent danger of personal injury or death, whether the person endangered
is one to whom he owes a duty of protection as in a member of his family, or is a mere stranger to whom he owes no such special duty.
Fourthly, the maxim does not apply to cases of negligence.
Lastly, this maxim does not apply where the act of the plaintiff relied upon to establish the defense under the maxims the very act which the defendant was under a duty to prevent.
2. Inevitable Accident.
This means an accident, which cannot be prevented by the exercise of ordinary care, caution or skill of an ordinary man. It occurs where there is no negligence on the part of the defendant because the law of torts is based on the fault principle; an injury arising out of an inevitable accident is not actionable in tort.
Case: Stanley Vs. Powell (1891) In this case, the plaintiff was employed to carry cartridge for a shooting party. A member of the party fired at a distance but the bullet, after hitting a tree, rebounded into the plaintiff's eye. The plaintiff sued. It was held that the defendant was not liable in the light of the circumstance of inevitable accident.
Lord Dunedin stated observed, "People must guard against reasonable probabilities, but they are not under duty to guard against fantastic possibilities". Inevitable accident however is not a defense in strict liability case by the rule in Ryland Vs. Fletcher'
3. Vis Major (ACT OF GOD)
This is also an inevitable accident caused by natural forces unconnected with human beings e.g. earthquake, floods, thunderstorm, etc.
Case: Nichols V s. Marshland (1876): The defendant has a number of artificial lakes on his land. Unprecedented rain such as had never been witnessed in living memory caused the banks of the lakes to burst and the escaping water carried away four bridges belonging to the plaintiff. It was held that the plaintiff's bridges were swept by act of God and the defendant was not liable.
In another case (Ryde Vs. Bushnell (1967): Sir Charles Newbold observed, "Nothing can be said to be an act of God unless it is an occurrence due exclusively to natural causes of so extraordinary a nature that it could not reasonably have been foreseen and the result avoided”.
4. Necessity:
Where intentional damage is done so as to prevent greater damage, the defense of necessity can be raised. The defense of necessity may apply in three cases, i.e. i) cases if public necessity, ii) cases of private necessity, and iii) cases where assistance is given to a third person without his consent as a matter of necessity, for example, a man who seizes the other forcibly and drags him out of the road to prevent his injury or death from oncoming vehicles. Sometimes a person may find himself in a position whereby he is forced to interfere with rights of another person so as to prevent harm to himself or his property.
In the case of Cope Vs. Sharpe (1912): The defendant committed certain acts of trespass on the plaintiff's land in order to prevent fire from spreading to his master's land. The fire never in fact caused the damage and would not have done so even if the defendant had not taken the precautions he took.
But the danger of the fire spreading to the master's land was real and imminent. It was held that the defendant was not liable as the risk to his master's property was real and imminent and a reasonable person in his position would have done what the defendant did.
The general rule is that a person should not unduly interfere with the person or property of another. It is only in exceptional cases of imminent danger that the defense of necessity maybe upheld. It is based on the principle that the welfare of the people is the supreme law. Whether the defense of necessity would extend to inflicting injuries to the person is debatable.
In the case of Esso Petroleum Ltd. Vs. Southport Corporation (1956) it was held that the safety of human beings belongs to a- different scale of value from the safety of property. These two are beyond comparison and the necessity for saving life has all times been considered, as a proper ground for inflicting such damage as may be necessary upon a other's property.
5. Self Defense
Everyone has a right to defend his person, property and family from unlawful harm. A person who is attacked does not owe his attacker a duty to escape. Everyone whose life is threatened is entitled to defend himself and may use force in doing so. The force used must be reasonable and proportionate to that of the attacker. Normally, ‘no verbal provocation can justify a blow’
An occupier of property may defend it where his right or interest therein is wrongfully interfered with. However, in protecting one’s property, he cannot do an act which is injurious to his neighbour; neither can he adopt a course which may have defect of diverting the mischief from his own land to the land of another person which would otherwise have been protected. A trespasser may be lawfully ejected using reasonable force. Thus a man must use force as is reasonably necessary and the means of defense must be related to the harm, which would otherwise be suffered. It is therefore sound to take reasonable steps to protect his property e.g. by keeping fierce dog, broken glass on a boundary wall etc.
6. Mistake
The general rule is that a mistake is no defense in tort, be it a mistake of law or of fact. Mistake of fact, however, maybe relevant as a defense to any tort in some exceptional circumstances e.g. malicious prosecution, false imprisonment and deceit. Thus where a police officer arrests a person about to commit a crime but the person arrested turns out to be innocent the police officer is not liable. Mistake however, cannot be a defense in actions for defamation.
7. Statutory Authority
When a statute authorizes the commission of what would otherwise be a tort, and then the
injured person is remediless, unless so far as the legislature has thought it proper to provide compensation to him. The statutory authority extends not merely to the act authorized by the statute but to all inevitable consequences of that act. But the powers conferred by the legislature should be exercised with judgment and caution so that no unnecessary damage is done, the person must do so in good faith and must not exceed the powers granted by the statute otherwise he will be liable.
In the Case of Vaugham Vs. Taffvale Railway Co. (1860), A railway company was authorized by statute to run a railway, which traversed the plaintiff's land. Sparks from the engine set fire to the plaintiff's woods. It was held that the railway company was not liable. It had taken all known care to prevented emission of sparks. The running of locomotives was statutorily authorized.
8. Novus Actus Interveniens.
This is when a chain of events results from a tort so that the loss suffered is not within the scope of those that would naturally occur from the first tort. To refer to a novus actus interveniens is in fact merely another way of saying that the loss was not reasonably foreseeable.
This however, does not become an excuse if: -
a). An act done in the agony of the moment created by the defendants tort. E.g. If you threw a lighted firework into a crowded market place. Several people threw the firework from their vicinity until it explodes on another’s face. Scott Vs. Shepherd (1773)
b). Where the intervening act is a rescue.
9 Contributory negligence The defendant may rely upon this defense if the plaintiff is also to blame for his suffering. The defendant must prove that:
- The plaintiff exposed himself to the risk by his act or omission.- The plaintiff was at fault or negligent.- The plaintiff’s negligence or fault contributed to his suffering. This defense does
not absolve the defendant from liability. It merely apportions compensation of damages between the parties who contributed to the loss. This defense is not available if the plaintiff is a child of tender age.
TRESPASSTrespass as a wrong has a very wide application. It could mean unlawful presence in another's closure or land or premises, offence to the body of a person or even mean wrongful taking of goods or chattels.
To constitute the wrong of trespass, neither force nor unlawful intention not actual damage nor breaking of an enclosure is necessary.
Every invasion of private property be it ever so minor is a trespass.
Trespass may take any of the following three forms:
a) Trespass to land.
b) Trespass to person, and;
c) Trespass to goods.
TRESPASS TO LAND
Trespass to land may be committed by any of the following acts: -
a). Entering upon the land or property of the plaintiff
b). Continuing to remain in such land or property on expiry of license i.e. Permission to be in it.
c). Doing an act affecting the sole possession of the plaintiff, in each case without justification.
d) By throwing objects into another’s land.
e) By using the right of entry for purposes other than for which it was allowed.
Generally, trespass to land is a civil wrong. However it may give rise to criminal proceeding;
For example: Under the Trespass Act (Cap 294), a trespasser can be prosecuted for a criminal offence if he enters on somebody's land with intent to steal goods or commit any other offence.
It is important to note that trespass to land is actionable per se, that is, without proof of special damage. In other words, it is not a defense that no damage has been caused by the trespass.
Following are explanations to the elements of trespass:
1. Entry as an essence to constitute a trespass.
A man is not liable for involuntary entry but intentional entry, even though made under mistake. E.g. if in mowing in his own land a man inadvertently allows his blade to cut through into his neighbors' field, he is guilty of trespass.
Public streets including pavements e.t.c are primarily dedicated for public use for the purpose of passage and cannot be used as though it is private residence. Thus an excess of ordinary user of highway amount to trespass.
2. If a person who has lawfully entered on the land of another remains there, after his right of entry has ceased he shall then be committing trespass.
3. Every interference with the land if another e.g. throwing stones over a neighbors land is deemed to be constructive entry amounting to trespass, much as driving a nail into another walls,
planting trees on his land e.t.c
These are actionable per-se whereas private nuisance is actionable only with proof of damage.
The owner of land is entitled to the column of air space above the surface ad- infinitum for ordinary use and enjoyment, and anything down to the center of the earth.
In principle, every continuance of a trespass is afresh trespass and an action may be brought of it. An action may be brought for the original trespass in placing an encumbrance on the land and another action for continuing the structure being so erected. It therefore follows that a recovery of damage in the first action by way of accord and satisfaction does not operated as purchase of the right to continue in the injury.
Trespass by a man's cattle, sheep, poultry etc is dealt with similar to trespass committed by the owner personally.
Remedies for Trespass to land.
1. Defense of property: He may have to use force till he gets possession but not unnecessary amount of force of violence. This is called remedy of ejection.
2. Expulsion of trespasser especially in case of continued trespass.
3. Distress damage feasant: He may seize and retain them impounded as a pledge for the redress of the injury sustained.
4. Damages: This means recovery of monetary compensation from the defendant.
5. Injunction: This may be obtained to ward off a threatened trespass or to prevent a continuing trespass.
6. Action for recovery of Land: In case the plaintiff is wrongfully dispossessed of his land he can sue for the recovery of the land from the defendant.
Defenses against Trespass on land.
i. Statutory authority: Where the law allows entry upon land.ii. Entry by license: Where entry is authorized by land owner, unless authority is abused.iii. Adverse possession: Where land has been peacefully possessed for over 12 years
without disturbance.iv. Act of Necessity: Example is entry to put off fire for public safety is justifiable.v. By order of court of law: This may be in execution of court order e.g. by court
brokers.vi. Self defence: a trespasser may be excused as having been done in self defence or in
the defence of a person’s goods, chattels or animals.vii. Re-entry on land: A person wrongfully dispossessed of land may re-take possession
of it if it’s possible for him to do so peacefully and without the use of force. In this case, he will not be liable for trespass to land.
viii. Re-taking of goods and chattels: if person unlawfully takes the goods and chattels of another upon his own land, he impliedly licenses the owner of the goods to enter his land for the purpose of recaption.
TRESPASS TO PERSON
Any direct interference with the person (body) of another is actionable in the absence of any lawful justification. Trespass to person includes assault, battery and false imprisonment.
Assault
Assault means conduct or threat to do violence in circumstances that may create apprehension that the plaintiff is in real danger. It is committed when a person threatens to use force against the person of another thus putting the other person in fear of immediate danger.
Examples: Shaking of fist, pointing o a gun menacingly at another, letting go a dog fiercely etc.
It is important to note that not every threat amounts to assault. There must be the means of carrying out the threat and the capacity to effect the threat. The person threatened must be put in fear of immediate danger. An assault is a tort as well as a crime. The intention as well as the act makes assault. Mere words do not amount to assault unless it gives the user’s gesture such a meaning as may amount to assault.
Battery
Battery means the actual application (use) of force against the person of another without lawful justification. It is immaterial whether the force is applied directly or indirectly to the person. But there must be actual bodily contact between the plaintiff and the defendant.
Examples: - striking of another person or touching another person in a rude manner, pouring water on or spitting on another person.
False Imprisonment
False imprisonment means total restraint or deprivation of the liberty of a person without lawful excuse. The duration of the time of detention is immaterial. False imprisonment may be committed even without the plaintiff's knowledge e.g. by locking him up in his bedroom while he is asleep and then reopening the door before he has awoken.
In such a case the plaintiff may still sue. In false imprisonment, it’s not necessary that the person’s body should be touched.
A person is not only liable for false imprisonment when he directly arrests or detains the plaintiff, but also when he actively promotes or causes the arrest or detention of the person.
Defenses to assault battery & false imprisonment
a). Volenti non-fit injuria: A person who has voluntarily consented to come into actual bodily
contact with another e.g. in sports, etc cannot later complain against another person who touches him in the course of playing the game.
b). Private defense: A person is within his legal rights to defense himself, his property or his family. But he must use reasonable force in doing so.
c). Legal authority: A police officer has statutory authority to arrest a person in the preservation of public peace. Here reasonable force may be used to effect such arrest.
d). Forceful entry; The rightful owner of property is entitled to use reasonable force to prevent forcible entry on his land or to repossess his land or goods, which are wrongfully in the possession of another.
e). Parental authority: People such as parents, teachers, etc can inflict reasonable punishment for the correction and benefit of the children.
Thus a parent can chastise or even lock-up a child reasonably without being guilty of assault, battery or false imprisonment.
TRESPASS TO GOODS
A person can sue for trespass to goods where there is wrongful interference with goods, which are in his possession. Such interference includes wrongful conversion, actual taking of or a direct and immediate injury to the goods.
The tort of trespass to goods is meant to protect personal property.
To constitute the tort of trespass to goods, the plaintiff must show: -
1. That at the time of trespass, he had the possession of the goods.2. That his possession had been wrongfully interfered with or disturbed.
Tt Trespass to goods are of three categories namely: -
1. Trespass to chattels.2. Goods Detenue and;3. Conversion.
Trespass to Chattels
It means interference with goods, which are in the actual or constructive possession of the
plaintiff. It may involve:
- Removal of goods from one place to another,- Using the goods or;- Destroying or damaging the goods wrongfully.
For an action to be sustainable:
- The trespass must be direct.- The plaintiff must be in possession of the chattel at the time of the interference. - The tort is actionable per-se.
Detenue
This means wrongful withholding or detention of goods from the person entitled to their immediate possession.
For example: If A lends his book to B and B refuses, to return it to A, A is said to have committed the tort of Detenue.
Conversion
This means dealing with goods in a manner that is inconsistent with the right of the person in possession of them. This tort protects a person’s interest in dominion and control of goods. The plaintiff must be in possession or have the right to immediate possession.
For example: If A intentionally sells B's goods to C without any authority from B, A is guilty of conversion.
Acts of conversion may be committed when property is wrongfully taken, parted with, sold, retained, destroyed or the lawful owner’s right is denied.
Defenses to trespass to goods.
Limited defenses are available to a defendant against a wrong to goods. The defendant, however, can claim the right of lien. He may also claim other general defenses like statutory or judicial authority.
Remedies to trespass to goods.
i. Recaption: The plaintiff can recapture his goods that have been wrongfully taken away from him provided he uses reasonable force.
ii. Order for specific restitution: The court may also order for specific restitution of the goods where damages is not adequate a remedy.
iii. Damages: The plaintiff is entitled to claim the full value of the goods and damages for any inconvenience suffered by him.
OCCUPIERS LIABILITY
At common law, an occupier owns a common duty of care to his invites or invitee while within their premises and is generally liable for any injury to them or damage to their goods by reason of condition to their premises.
The law relating to occupiers liability in Kenya is contained tin the Occupiers Liability Act Cap
34 laws of Kenya.
The object of the Act was to amend the law relating to liability of occupiers and to others for
injury or damages resulting persons or goods lawfully on any land or other property. Under the
Act, an occupier owes a common duty of care to all invitees and their goods. However the
common duty of care may be modified or restricted by agreement.
The Act abolishes the old distinction between licensees and invitees, and now calls such persons
visitors. This however does not include trespassers.
Under Section 3(2) of the Act, common law duty of care means “a duty to take such care in all the circumstances of the case as is reasonable to see that the visitor will be reasonably safe in using the premises for the purpose in which he is invited or permitted to be there”
The court will consider the following in determining if there was this common law duty of care:
- Whether the invitee is a child, the occupier must be prepared to take children to be less careful than adults.
- Whether the invitee was exercising his calling under the Act, an occupier may expect that a person in exercise of his calling will appreciate and guard against any special risk ordinarily incidental to the calling if the occupier permits him to do so.
The occupier is not liable where the accident occurs through the defective work of an independent contractor provided he can establish that the contractor was efficient as far as he was able and that he had inspected the work done.
Defenses
- An occupier may escape liability if the injury or damage is occasioned by danger of which the occupier had warned the invitee.
- The occupier may escape liability in respect of any damages caused to the invitee if occasioned by the fault of an independent contractor.
- The common duty of care does not impose on an occupier any obligation in respect of risks willingly accepted by the invitee.
- The occupier owes no common duty of care to trespassers and is not liable for any injury
or damage they may suffer while in his premises.
NEGLIGENCEAccording to Judge Alderson, negligence means the breach of a duty caused by the omission to do something, which a reasonable man would do, or doing of something, which a prudent and reasonable man would not do.
Negligence consist of neglect to use of ordinary care or skill towards a person to whom the defendant owes the duty of observing ordinary care and skill, by which neglect, the person has suffered injury to his person or property.
The plaintiff suing under tort of negligence must prove that:
1. The defendant owed him a duty of care,The circumstances must be such that the defendant knew or reasonably ought to have known that acting negligently would injure the plaintiff. A road user owes other users a legal duty of care. An inviter owes his invitees a legal duty of care. A manufacturer of products owes a legal duty of care to consumers. As a general rule, every person owes his neighbor a legal duty of care. The neighbor principle was enunciated by Lord Atkin in his dictum celebrated case of Donohue Vs Stevenson (1932), a man bought a bottle of ginger beer from a retail shop. The man gave the bottle to his girlfriend who became ill after drinking the contents. The bottle contained the decomposed remains of a snail. The bottle was opaque so that the substance could not be discovered until the lady was refilling her glass. The consumer sued the manufacturer for negligence. Lord Atkin in his ruling said “the law that you are to love your neighbor becomes in law that your must not injure your neighbors…who then is my neghbour? The answer seems to be persons who are so closely and directly affected by my acts that I ought reasonably to have them in contemplation as being so affected when I am directing my mind to the acts or omission which are called in question”
In the Case of Dulieu Vs. White & Sons (1901), the plaintiff, a pregnant woman, was sitting behind the counter of her husband’s bar when suddenly a horse was driven into the bar. Fearing her personal safety, she suffered nervous shock and gave birth to a premature baby. In the circumstances, the court held that the plaintiff was entitled to recover in negligence.
The standard of care expected of the defendant is that of a reasonable man. This is a man of ordinary prudence. A reasonable person is an objective stand created by law for all circumstances. Where professionals or experts are involved, the standard of care is that of a
reasonably competent expert in that field.
There are some circumstances however where not even a reasonable person could have foreseen the plaintiff suffering any loss, in which case, there is no liability upon the person who has committed the injurious act. In the landmark case of Bourhill Vs. Young (1943), the plaintiff (a pregnant woman) heard the noise of a road accident some distance away and walked to the scene. On reaching there, she suffered nervous shock and subsequently miscarried. In the circumstances, the Court held that the plaintiff could not recover in negligence because the injury she suffered or the manner in which it was caused which was not foreseeable. Had the plaintiff not walked to the scene of the accident, she would not have suffered the injury complained of. Such injury was legally termed as remote.
2. There has been a breach of that legal duty or care.The plaintiff has to prove that there was a duty imposed by common law, statute or otherwise, upon the defendant and that the defendant was in breach of this duty.
However, at certain times, negligence is presumed without proof of breach of duty by the plaintiff. This is in the case of res-ipsa loquitor.
RES IPSA LOQUITOR
As a general rule, the burden of proving negligence lies with the plaintiff. He must prove that the defendant owed him a duty of care, that the defendant has breached that duty and that he has suffered damage.
However, in certain cases, the plaintiff's burden of proof is relieved by the doctrine of res ipsa loquitor. Where it is applicable Res ipsa Loquitor means that ‘thing or facts speaks for themselves’.
This for example, occurs where an accident happens in circumstances in which it ought not to have occurred e.g. a car traveling on a straight road in clear weather and good visibility suddenly swerves off the road and overturns, where a barrel of flour suddenly drops from a warehouse, etc. Such an accident ought not to have occurred except for the negligence of the defendant.
Res ipsa loquitor is a rule of evidence and not of law. It merely assists the plaintiff in proving negligence against the defendant. Before it can be relied upon, three conditions must be satisfied, namely:
a) The thing inflicting the injury must have been under the control of the defendant or someone whom he controls.
b) The event must be such that it could not have happened without negligence and;c) There must be no evidence or explanation as to why or how the event occurred, as the
accident is such as in the ordinary course of things does not happen if those who have the duty use proper care.
In the case of Bryne Vs. Boadle (1863), a barrel of flour fell from a warehouse o the defendant onto the plaintiff injuring him in the street while he was passing through. In the circumstances, the Court held that the plaintiff was not required to show how the accident took place because on the facts, negligence could be presumed and the rule of res ipsa loquitor applied.
Effect of Res ipsa rule
1. It provides prima facie evidence of negligence on the part of the defendant.2. It shifts the burden of proof form the plaintiff to the defendant.3. The plaintiff has suffered injury to his person or property.
Plaintiff has to prove that if it were not of the defendant’s act he would not have suffered loss or damage.
There must be a traceable link between the act and the loss, otherwise it would be considered remote and so, irrecoverable. If the plaintiff act is traceable to an independent intervening act (novus actus), the defendant is not liable.
Defenses to Negligence
1. Contributory negligence: This defense is available to the defendant in circumstances in which the plaintiff is also to blame for his suffering. The effect of this defense is to reduce the amount recoverable by the plaintiff as damages by the extent of his contribution. Liability is apportioned between the parties. In earlier law, a person who had contributed to his injury due to his own negligence could not maintain an action in regard top such injury but this was altered in Kenya by the law reform Act (Cap 26).This law now enables the plaintiff to recover damages even in case of contributory negligence. However, the damages to be recovered are to be reduced to such an extent by the court, taking into consideration that the plaintiff contributed to his injury. Contributory negligence does not apply in case of children and they can recover full damages even in case of their contributory negligence.
2. Volenti non fit injuria: This is the doctrine of voluntary assumption of risk.3. Statutory authority: The defendant must prove in this defense that he acted in accordance
with the provisions of the Act.
VICARIOUS LIABILITY
Vicarious liability means the liability of one person for the torts committed by another person. The general rule is that every person is liable for his own wrongful act. However, in certain cases a person may be made liable for wrongful acts committed by another person.
For example: An employer may be held liable for the tort of his employees. Similarly, a master is liable for any tort, which the servant commits in the course of his employment.
The reason for this rule of common law is that:
- As the master has the benefit of his servant's service he should also accept liabilities.- The master should be held liable as he creates circumstances that give rise to liability.- The servant was at mere control and discretion of the master.- Since the master engages the servant, he ought to be held liable when gagging a wrong
person.- The master is financially better placed than the servant.
MASTER AND SERVANT
A servant means a person employed under a contract of service and acts on the orders of his master. The master therefore controls the manner in which his work is done.
The concept of vicarious liability is based on the principle of equity that employee is normally people of meager resources and it is therefore only fair that the injured person is allowed to recover damages from the employers. Therefore a master is liable for the torts committed by his servant.
To prove liability under master-servant relationship the servant must have acted in the course of his employment A master is liable whether the act in a question was approved by him or not. It is immaterial that the alleged act was not done for the benefit of the master. But the master is not liable for torts committed beyond the scope of employment.
A servant is a person who works under the control of and is subject to the directions of another e.g. house-help, home servant, chauffeurs etc. Such persons are employed under a contract of service.
The servant would also hold his master liable for torts committed in the course of duty for action done on ostensible authority.
For vicarious liability to arise, it must be proved that:
1. There was a lawful relationship between the parties.2. There must have been a contract of service between the parties.3. The servant is under the control and discretion of the master. This control and discretion
is determined by the master’s freedom:- To hire or fire the servant.- To determine the tasks to be discharged.- To provide implements.- To determine how the tasks would be discharged.- To determine the servants remuneration. - That the tort was committed by the servant in the course of his employment. This
is irrespective of whether the servant was acting negligently, criminally, deliberately
or wantonly for his own benefit. In Patel Vs Yafesi, where an employee was carrying 3 excess passengers in the vehicle contrary to the master’s instructions, it was held that the master was liable as the driver was acting in the course of his employment.
INDEPENDENT CONTRACTOR
An independent contract means a person who undertakes to produce a given result without being controlled on how he achieves that result. These are called contract for service. Because the employer has no direct control of him, he (the employer) is not liable for his wrongful acts.
However, there are certain cases (exception) under which the employer may still be liable.
These are: -
a). Where the employer retains his control over the contractor and personally interferes and makes himself a party to the act, which causes the damage.
b). Where the thing contracted is in itself a tort.
c). Where the thing contracted to be done is likely to do damage to other people's property or cause nuisance.
d). Where there is strict liability without proof of negligence e.g. the rule in Ryland vs. Fletcher.
STRICT LIABILITY
Strict liability means liability without proof of any fault on the part of the wrongdoer. Once the plaintiff is proved to have suffered damage from the defendant's wrongful conduct, the defendant is liable whether there was fault on his part or not.
Strict liability must be distinguished from absolute liability. Where there is absolute liability, the wrong is actionable without proof of fault on the part of the wrong-doer and in addition, there is no defense whatsoever to the action. Where there is strict liability, the wrong is actionable without proof of fault but some defenses may also be available.
Strict liability may be considered in the following case namely:
i. The rule in Ryland Vs. Fletcher (1866)
ii. Liability for fire and;
iii. Liability for animals.
1. The rule in RYLAND VS FLETCHER (1866)
The rule is base on the judgment contained in the above case. It states that; "The person who, for his own purposes, brings on his land and collects and keeps there anything likely to do mischief if it escapes, must keep it at his peril and, is prima facie answerable for all the damage which is the natural consequence of its escape".
The above rule is commonly called the rule in Ryland vs. Fletcher. It was formulated on the basis of the case of Ryland vs. Fletcher (1866). In this case Ryland had employed independent contractors to construct a reservoir on his land adjoining that of Fletcher. Due to the contractor's negligence, old mine shafts, leading from Ryland’s land to Fletcher's were not blocked. When the reservoir was filled, the water escaped through the shafts and flooded the plaintiffs mine and caused great damage. The court held that Ryland was liable and it was immaterial that there was no fault on their part.
Limits of the rule.For this rule to apply the following conditions must be applied:
i. Non-natural user: The defendant must have used his land in a way, which is not ordinarily natural.
ii. Bringing into, or keeping or accumulating things on land for personal use.iii. That the things brought were capable of causing mischief if they escaped. These things
need not be dangerous always.iv. Need for escape: There must be actual escape of the thing from the defendants land and
not a place outside it.v. That the plaintiff suffered loss or damage for such escape.
Defenses in rule in Ryland vs. Fletcher.i. Acts of God: Act of God is a good defense to an action brought under the rule.ii. Plaintiffs' Fault: If the escape of the thing is due to the fault of the plaintiff, the
defendant is not liable. This is because the plaintiff has himself brought about his own suffering.
iii. Plaintiff’s consent or benefit: That the accumulation or bringing of the thing was by consent of the plaintiff.
iv. Statutory authority: That the thing was brought into the land by requirement of an Act of parliament.
v. Contributory negligence: if the plaintiff was also to blame for the escape.vi. Wrongful act of third party: the defendant may take the defence of the wrongful acts
of a third party though he may still be held liable in negligence if he failed to foresee and guard against the consequences to his works of that third party’s act.
vii. Artificial work maintained for the common benefit of plaintiff and defendant.2. Liability for Fire:
The liability for fire due to negligence is actionable in tort. It is also a case of strict liability. Therefore, if a fire starts without negligence but it spreads due -to negligence of a person, then
that person will be liable for damages caused by the spread of the fire.
3. Liability for Animals:
This may arise in cases of negligence. An occupier of land is liable for damage done by his cattle
if they trespass onto the land of his neighbors thus causing damage.
In the same way, person who keeps dangerous animals like leopards, dogs, lions, etc is liable strictly for any injury by such animals. He cannot claim that he was careful in keeping them. He remains liable even in the absence of negligence.
DEFAMATION
Defamation means the publication of a false statement regarding another person without lawful justification, which tends to lower his reputation in the estimation of right thinking members of society or which causes him to be shunned or avoided or has a tendency to injure him in his office, professions or trade. It has also been defined as the publication of a statement that tends to injure the reputation of another by exposing him to hatred, contempt or ridicule.In the case of Dixon Vs Holden (1869) the right of reputation is recognized as an inherent right of every person, which can be exercised against the entire world. A man’s reputation is therefore considered his property. Following are the essential elements of defamation: -
i. False statement: The defendant must have made a false statement. If the statement is true, it's not defamation.
ii. Defamatory statement: The statement must be defamatory. A statement is said to be defamatory when it expose the plaintiff to hatred, contempt, ridicule or shunning or injures him in his profession or trade among the people known to him.
iii. Statement refers the plaintiff: The defamatory statement must refer to the plaintiff. But the plaintiff need not have been specifically named. It is sufficient if right thinking members of the society understand the statement to refer to the plaintiff.
iv. Statement must be Published: Publication of the statement consists in making known of the defamatory matter to someone else (third parties) other than the plaintiff.
Where the defamatory statement is kept under lock and key and no one ever gets to read it, there is no defamation.
TYPES OF DEFAMATION 1. Slander:
Slander takes place where the defamatory statement are made in non-permanent form e.g. by word of mouth, gestures, etc. Slander is actionable only on proof of damage. However, in exceptional cases, a slanderous statement is actionable without proof of damage. This is so in cases:a) Where the statement inputs a criminal offence punished by imprisonment.b) Where the statement inputs a contagious disease on the plaintiff. c) Where the statement inputs unchastely on a woman.
d) Where the statement imputes incompetence on the plaintiff in his trade, occupation or profession.
2. Libel:
Libel takes place where the defamatory permanent form e.g. in writing, printing, television broadcasting, effigy, etc.
Where a defamatory matter is dictated to a secretary and she subsequently transcribes it, the act of dictation constitutes a slander while the transcript is a libel. An action for libel has the following essential requirements:
i) it must be proved that the statement is false, ii) in writing, iii) is defamatory, andiv) has been published.
Distinctions between slander and libelLibel can be a criminal offence as well as a civil wrong while slander amounts to a mere civil wrong only.
1. Libel is in a permanent form while slander is in a non-permanent form. 2. Under libel, the wrong is actionable per se whereas in slander the plaintiff must prove
actual damage except when it conveys certain imputations.3. Libel can be a criminal offence and may as well give rise to civil liability while slander is
essentially a civil wrong.Defenses against defamation
i. Truth or justification: Truth is a complete defense to an action on libel or slander. The defendant must be sure of proving the truth of the statement otherwise more serious and aggravated damage may be awarded against him.
ii. Fair comment: Fair comment on a matter of Public interest is a defense against defamation. The word "fair" means honesty relevant and free from malice and improper motive.
iii. Absolute Privilege: Certain matters are not actionable at all in defamation. They are absolutely privileged. A matter is said to be privileged when the person who makes the communication has a moral duty to make it to the person to whom he does make it, and the person who received it has an interest in hearing it. They include statements made by the judges or magistrates in the course of judicial proceedings, statements made in Parliament by Legislators and communication between spouses, etc.
iv. Qualified Privilege: In this case a person is entitled to communicate a defamatory statement so long as no malice is proved on his part. They include statements made by a defendant while defending his reputation, communications made to a person in public position for public good, etc.
v. Apology or offer of Amends: The defendant is at liberty to offer to make a suitable correction of the offending statement coupled with an apology. Such offers maybe
relied upon as a defense. The defendant can make an offer of amends where the publication was without malice and it was published innocently.
vi. Consent: In case whereby the plaintiff impliedly consents to the publication complained of, such consent is a defence in defamation.
Remedies for defamation
Damages: The plaintiff can recover damages for injury to his reputation as well as his feelings.
Apology: An apology is another remedy available to the plaintiff. This is because it has the effect of correcting the impression previously made by the offending statement about the plaintiff.
Injunctions: The Court may grant injunction restraining the publication of a libel. But the plaintiff must first prove that the defamatory statement is untrue and its publication will cause irreparable damage to him.
NUISANCE
This is the lawful interference with a person’s use or enjoyment of land or some other rights over or in connection with land. It entails the doing or an unjustifiable thing, which interferes with the use or enjoyment of another’s land. This tort protects a person’s enjoyment of land or rights vested in the land. Nuisance may be public or private.
Public Nuisance
This is an act, which interferes with the enjoyment of a right of members or a society in general e.g right of fresh air, noise free environment, use of public highway, waterway, etc.
Public nuisance is criminal offence actionable by the state on behalf of the public. However, an individual may sue for public nuisance only if he may prove that he has suffered particular damage or loss over and above what other members of the public have suffered. Such injury caused must be direct and not mere consequential injury. It must also be shown to be of a substantial character in order to avoid multiplicity of litigation. Public nuisance is therefore a tort as well as crime. These suits are dealt with by or in the name of the state.
Private NuisanceThis is the unlawful interference with a person’s use of land or right connected with the land. It affects a person in his individual capacity and hence a personal action for redress is necessary. It may take the form of noise, heat, smoke, vibrations, overhanging branches, playing loud music etc.
Private nuisance is not actionable if the action of the defendant is reasonable in the legitimate use of his property.
The defendant would also not be liable if the plaintiff is over sensitive.
The standard or test applied by courts is that of a reasonable man.
The defendant cannot escape liability by pleading that the plaintiff came to the source of the nuisance.
The defendant cannot escape liability by pleading that the plaintiff came to the source of the nuisance.
Relief / Remedies to tort of nuisance.
1. Damages: The tort of nuisance is not actionable per-se. The plaintiff must prove loss or damage unless the same can be presumed.
2. Injunction: The plaintiff may apply for an order to restrain the defendant from continuing with the tortuous acts and the court may grant the order if circumstances so demand.
3. Abatement: This is the discontinuation of the nuisance e.g. cutting overhanging branches or roots.
A person may only sue for nuisance if he has an interest in the land affected. A guest whose enjoyment of land is interfered with has no action in nuisance unless he is vested with the management and control of the source of nuisance.
Defenses to the tort of nuisance
1. Prescription: Right to commit private nuisance may be acquired by continuation of the nuisance for 20 years or more. The tortfeaser acquires prescriptive rights if he proves that he has committed the alleged nuisance for such period of 20 years without any interference.
2. Statutory authority: This is the offending act has been enabled by an Act of parliament. Plaintiff’s consent: This is the defense of Volenti non fit injuria i.e. that the plaintiff willingly consented to the nuisance with full knowledge of its character.
REVISION QUESTIONS
QUESTION ONE
Discuss the constituents of tort
QUESTION TWO
Discuss the general defenses under tort
QUESTION THREE
Discuss Trespass to person and its general defenses
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