AGRICULTURAL FINANCE CORPORATION v POCOCK 1986 (2) ZLR 229 (S)

Flynote

Contract — non-variation clause — non-waiver clause — combined effect of both clauses in a contract

Headnote

A non-variation clause in a contract entrenches the requirement that any variation has to be in writing but does not prevent a party for whose benefit it is inserted from waiving the requirement.

A non-waiver clause negatives any raising of a waiver or any estoppel in that it amounts to notice given in advance, acknowledged by the other party, that conduct which might otherwise be a waiver or give rise to an estoppel, may not be taken to be such conduct.

The combined effect of the two clauses is that two parties to a written agreement containing carefully and extensively worded non-variation and non-waiver clauses cannot enter an enforceable oral agreement departing from the written terms since to the extent it is a variation of the contract it is precluded by the non-variation clause whereas if it be said to be a waiver or conduct giving rise to an estoppel then the non-waiver clause provides the complete answer to the point.