BLIGH-WALL v BONAVENTURE ZIMBABWE (PVT) LTD & ANOR 1998 (2) ZLR 264 (S)

Flynote

Contract — divisibility — contract C containing a "whole agreement" clause — effect — whether that agreement was in fact the whole agreement — unlawful agreement to pay part of purchase price outside Zimbabwe — whether this portion of agreement severable from rest of contract

Headnote

The seller sold her shares in a company D to the buyer. The agreed purchase price was Z$1.2 million which was later amended to Z$700 000, with the remainder to be paid outside the country in foreign currency. The agreement was initially oral, but later the parties signed a written agreement in which the purchase price was shown as Z$700 000. The written contract contained a whole agreement clause. The payment of the foreign currency component was dealt with in a letter addressed to the seller and signed by a director of the company which was the buyer. The buyer failed to pay a portion of the foreign currency component and when the seller sought to claim the outstanding amount, the buyer resisted the claim, inter alia, on the grounds that the signed written agreement represented the whole agreement and that the agreement to pay part of the purchase price outside Zimbabwe was illegal and unenforceable.

Held, that the seller was not precluded from claiming by the whole agreement clause in the signed written contract. In the papers before the court, the parties had accepted that the written agreement was not the whole agreement. Indeed, it could be said that the written agreement was not the agreement at all since the purchase price is an essential part of an agreement of sale and both parties knew that Z$700 000 was not the full purchase price.

Held, further, that although the agreement to pay part of the purchase price outside Zimbabwe was unlawful, this agreement was not unenforceable in the circumstances. The seller had initially sought payment of the entire purchase price in Zimbabwe in local currency and had somewhat reluctantly agreed to be paid abroad. This provision was easily severable from the rest of the contract as this provision was not the main consideration for the entering into the contract. It was a negligible consideration for the seller and was of no consequence for the buyer.

Held, further, theseller had not based her claim only on an illegal contract because in her alternative prayer the seller asked for payment in Zimbabwean dollars. By making such claim she was in fact abandoning the illegal portion of the contract, namely the stipulation for payment abroad, and relying on the legal portion.