THE MUD-MAN ENTERPRISES (PVT) LTD T/A BLUE CHIP AGENCIES v NECHIRONGA & ORS 2003 (2) ZLR 131 (H)

Flynote

Contract” termination”cancellation”breach by one party of obligations ” when other party entitled to cancel contract” breach must relate to a vital or important term ” whether necessary for innocent party to demand performance

Headnote

The applicant bought a house from the respondents. He paid part of the purchase price, but did not, as required by the contract, obtain a loan from a building society, nor did he pay the balance on time. In order to pay the balance, he purported to sell the house to a third party, at a higher price than he paid. The respondents notified him that the sale was cancelled. Held, that the right to resile from an agreement does not arise merely by virtue of the fact that a contracting party has failed to carry out an obligation under an agreement timeously and has received a valid notice of rescission. The breach must also relate to a vital or important term of the agreement. Whether in a particular case the breach is of such a material or substantial nature is a question which can only be satisfactorily decided after an examination of all the relevant facts. On the facts of this case, the breach was material.